What To Expect In A Criminal Prosecution
The most important thing to know if you are charged with a crime is that you are entitled to have an attorney with you at each critical stage of the criminal prosecution. An experienced criminal defense attorney like Attorney Pamala J. Favreau will guide you through what can be a complicated process rife with many unintended traps for the unwary. Attorney Favreau knows how a criminal case is processed, having defended many people accused of crimes in Connecticut over the course of her career. Attorney Favreau will defend your constitutional rights while guiding you through the labyrinth of decision making required to reach the best outcome possible given your particular case.
Here are the steps you can expect during a criminal prosecution:
There are many ways that a criminal investigation can be started. Police can receive information about suspected criminal activity in many ways. Most commonly police receive a complaint accusing a person of committing a crime, or they may respond to the scene of a crime or accident after being called, or they happen upon persons engaged in the commission of a crime or those engaged in activity police believe is reasonably suspicious justifying their inquiry.
The police arrive at the scene of the alleged crime or accident. Police observe the scene and interview the subject of the complaint and any other persons present. The subject of the complaint has the right to refuse to answer questions put to them by police. If the police determine that a crime occurred and that based on the totality of the circumstances the subject of the complaint or any person present committed that crime, they then have probable cause to arrest. The probable cause determination to arrest an accused person on site is made by police based on their observations and the speedy information of others. There are also “non- custodial” arrests in which an accused person is arrested by police who make the arrest by issuing a summons and complaint, commonly known as a “ticket”.
Arrest By Warrant
The police receive information about criminal conduct that occurred in the past or that is ongoing in a community. Police develop the information reported by independently corroborating the criminal conduct alleged. Police may interview witnesses, obtain warrants to search and seize evidence, and attempt to interview the accused person. Police sometimes make use of undercover officers or confidential informants to obtain evidence directly from an accused person. Police gather information and report the details of their investigation in a sworn affidavit which is presented to a judge along with an application for an arrest warrant for an accused person named therein.
The probable cause determination that a crime was committed and that under the totality of the circumstances presented in the sworn affidavit the accused person named in the arrest warrant application committed that crime is made by a Judge, not the police. The police execute the arrest warrant by arresting the accused person named in the warrant. Police may try to interview the accused person once they are in police custody after arrest. Accused persons have the right to an attorney and to remain silent while in police custody and may decline any request for a police interview while in police custody.
The arrested person may be released from custody by police upon their written promise to appear in court on a date certain; or a non-surety bond guaranteeing that they will pay to the court the amount of bond required if they fail to appear in court on a date certain; or a surety bond which is posted by a professional bail bondsman who guarantees to pay the bond amount required to the court if the arrested person fails to appear in court on a date certain; or a cash bond that can be paid by the arrested person, or any other person on their behalf, which is forfeited if the arrested person does not appear in court on a date certain.
The arrested person, now known as the defendant, is physically presented to the court by police if they cannot post the amount of bond set by police or stated on the arrest warrant. The court may appoint a public defender for purposes of the arraignment unless the defendant has engaged the services of a private criminal defense attorney. There is a hearing held to determine the amount of bond and any conditions of release deemed necessary by the court to ensure the defendant’s future appearance in court while keeping any alleged victim and the public safe. The amount of bond required may be increased or decreased by the court at this hearing. The case is then continued to another court date. If the person still cannot make bond after their arraignment, they will be held in a correctional facility pending the resolution of their criminal case. Most, but not all, bonds may be posted in the clerk’s office at the courthouse or at the correctional facility.
Discovery Process And Plea Negotiations
The case is continued to various dates for the purpose of allowing defense counsel and the prosecutor to discuss a potential resolution of the criminal case. The prosecutor must disclose certain evidence to the defense. The defense lawyer may engage the services of a private investigator or other experts to conduct their own investigation. The defendant is not forced to prove anything or give any evidence, but the law requires defense counsel disclose certain evidence they intend to introduce at trial to the prosecutor.
The defense attorney discusses risks and benefits of voluntary disclosure with the defendant and any laws mandating certain disclosure by defense. The defense attorney determines if the defendant is eligible for a diversionary program that will result in the dismissal of the charges against them, provided that it is granted by the court and successfully completed. If the defendant is granted a diversionary program by the court, the case is continued for a period of time to allow the defendant to complete the program.
If no diversionary programs are available, or the defendant’s application for a diversionary program is denied by the court, the criminal defense attorney engages in negotiations or “plea bargaining” with the prosecutor. If a plea agreement acceptable to the defendant is reached the defendant is put to plea and the case is over if the court accepts the plea and disposition proposed by the parties and sentences the defendant in accordance with the plea agreement. If the defense attorney is unable to secure a plea agreement, or other disposition of the charges that is acceptable to the defendant, a judicial pretrial may be requested.
A judicial pretrial occurs in the Judge’s Chambers outside the presence of the defendant. The prosecution argues its best case to the judge and the defense lawyer argues the defendant’s best defense pointing out any weaknesses in the prosecutor’s case. The judge then proposes a resolution of the case. The court cannot change the charges but can change the sentence offered by the prosecutor in exchange for the defendant’s guilty plea. The defense attorney will discuss the resolution proposed by the judge with the defendant and if acceptable, the defendant is put to plea and the case ends after the defendant is sentenced. If the defendant does not accept the proposed disposition after a judicial pretrial the case is scheduled for trial.
Pre-Trial Motions And Trial
The defendant can elect to be tried by a jury or to be tried by the court. Pretrial motions are filed by the prosecution and defense either to exclude or limit the admission of evidence at trial, or to join or consolidate cases for trial, and to address other matters that are likely to occur at trial.
Pretrial motions are heard by the court outside the presence of the jury right before the jury trial commences, but different courts vary as to when pretrial motions are heard. A “pool” of potential jurors is called into the courthouse by the clerk. The “pool” consists of a number of adults who live in the county where the case is being tried. The jury selection process, known as “voir dire”, begins and all potential jurors in the jury pool are placed under oath and introduced to the case by the judge. Each potential juror is then questioned before the court by the prosecutor and the defense lawyer individually outside the presence of other potential jurors to determine their fitness to sit as jurors in the case. Once the jury is selected the trial begins.
A trial is much like what you may have seen on television, but it takes days rather than hours to complete. It is rarely as straight forward and may not be as entertaining. The judge makes all legal findings during the jury trial and the jury makes all factual findings. If a court trial is elected the court makes both findings of law and fact. If the defendant is found not guilty by the jury or by the court, the court discharges the defendant who is now free to go.
If the defendant is found guilty by the jury, the judge releases the jury and continues the case for sentencing or sentences the defendant. The court may order a pre-sentence investigation before continuing the case for sentencing. This process is the same in a trial by the court or a jury. The report of the pre-sentence investigation is prepared by a member of the Probation Division of Court Support Services and sets forth the background of the defendant, the position of the victim, if any, and makes a sentencing recommendation to the court. At this time the prosecution will request that the court increase the amount of bond required to secure the defendant’s appearance in court at the time of sentencing.
The defendant’s attorney argues to keep the amount of bond as it is or for an amount the defendant can post which is usually less than what the prosecutor is seeking. A new bond is set by the court, or the bond remains the same and the case is continued by the court to a date certain for sentencing. Once the defendant is sentenced by the court the case is over but some post-trial motions may still be filed with the trial court. If the defendant appeals their conviction the appeal is filed with and heard by the appellate court.
Various post-trial motions may be filed by the defendant asking the trial court to reverse any conviction notwithstanding the jury verdict, for a new trial, or to clarify the sentence. Other post-trial matters such as a motion for correction or modification of a sentence; a motion for modification, violation, or termination of probation; a modification or termination of a criminal protective order; or a motion to correct or modify the length of a sentence may still be filed with the trial court where appropriate. The defendant may also file an appeal of the conviction with the appellate court asking for a reversal of the conviction for specific legal reasons. If an appeal is filed, the defendant may be heard on bond by the trial court again to ask to be released from custody on bond pending the resolution of their appeal.