I thought it might be good to go through some of the basics in case you have been charged in a criminal case. First though, remember that a charge is just that. A claim. Something that someone says happened. The charge is not proof of anything and the presumption of innocence remains one of our most basic rights. The state or the government must PROVE that you committed a crime. They must prove that by legal and competent evidence establishing guilt beyond a reasonable doubt. That standard is much higher than in a civil case. Most jurors I ask say that proof beyond a reasonable doubt is almost proof to a certainty.
The question I usually get from someone charged in a case is “what happens next.” The answer depends on the level of the charge and the court that is handling the case. Let’s start with misdemeanor offenses, in state court. Suppose you face a charge that you committed a battery (an unlawful touching, think bar fight for example). If you were arrested at the time and did not post bond to get out of jail, your first hearing will provide the judge with an opportunity to advise you of the charge, the potential maximum punishment, and your rights as a defendant (including the right to an attorney at court expense if you cannot afford to hire a lawyer). The court will also hear your argument why you should be released or the bond lowered if applicable. Your release could be based on your promise to appear or you may be required to post a bond. A lawyer can only help you provide the court with information about your employment history, connections to the local community, education, prior criminal history if any, and your plan if released. So having a lawyer is critical at this first stage and at every other stage.
If your case is a felony in state court, the same general issues will be considered. Again, your criminal record and plan if released is important. Generally, the law favors release but the court will consider the likelihood you will show up for court in the future and whether your release would pose a risk of harm to persons in the community. So if you have threatened someone by phone while in jail awaiting that first hearing, don’t expect to be released. Those jail calls ARE RECORDED! A judge’s primary function in life is to protect society. Your freedom requires that you not make threats, or act like someone who cannot be trusted.
At the felony level in state court, your next appearance will likely be a Preliminary Hearing. You will be given a date to appear before a magistrate judge who will hear evidence and decide whether there is probable cause to believe a your have committed a crime. The burden of proof at the preliminary hearing is less than at trial. Substantial proof, or probable cause, is enough to cause the case to be “bound over” to the district court, which will then arraign you, set dates for a Pretrial Conference and for Trial. The exception to this process occurs if your case has been before a Grand Jury which already has determined probable cause. If that occurred, you will be told you have been “indicted.” Don’t worry. That term does not mean anything more important, but it signifies you will not have a Preliminary Hearing. That Preliminary Hearing has the advantage of letting you and your lawyer see the witnesses and some of the exhibits, but typically the prosecutors only provide a minimum of evidence – just enough for the finding of probable cause.
If your case is a felony in federal court, the process will be much the same as above. Your first appearance is typically before a federal magistrate who will advise you as above, and consider whether you will be detained pending trial. In federal court, the Bail Reform Act sets out the terms on which your release or detention pending the trial of the case will depend. In most federal drug cases, for example, the presumption of release is turned upside down, leaving you to overcome that presumption you will await your turn in jail, or at a federal detention center. A lawyer can give you the best hope of getting released if he or she understands the federal standards for the detention hearing. Get some help!
Most cases in Federal Court are brought by way of the Grand Jury, so that Preliminary Hearing is unlikely to occur. Federal Courts are more formal and the rules are somewhat different from state court, so your lawyer must be familiar with the procedures that apply in a federal criminal case.
You may also wonder how long it will take to get your case to trial. In state and federal courts, the pandemic has clogged the dockets. Your state case may take 6 months or more and the same is true of federal courts. That time is spent preparing for trial, understanding the case, learning about you and your story, considering whether there are pretrial motions to file, and then deciding whether to go to trial or work out a plea agreement with the prosecution.
More on how we spend our time getting ready for trial in the coming days.