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THE ARRAIGNMENT
Your first court appearance is usually for arraignment. This is where you will be advised of your trial rights. The prosecutor will ask you to confirm your identity, formally charge you and ask you to enter a plea. If you wish to contest the charge, then you must enter a plea of not guilty.
The judge will then ask if you want a judge or a jury trial. You should always ask for a jury trial in order to keep all of your options open until you have retained a lawyer. The judge, in concluding the arraignment, will decide whether any conditions should be imposed on you pending trial. After the arraignment you will be given notice to appear for a pre-trial hearing.
THE PRE-TRIAL HEARING
The pre-trial hearing is scheduled at your arraignment, and is intended to provide the opportunity for your lawyer and the prosecutor to discuss the case, explore plea bargaining options, and to determine whether the parties have exchanged all information required by court rules. Continuances of the pre-trial hearing are not uncommon.
Typically the hearing is continued because the defense needs to:
- Obtain court ordered information, such as police radio tapes, accident reconstruction reports, missing pages from police reports, etc.;
- Complete witness interviews and/or independent investigations;
- Retain expert witness;
- Locate missing witnesses; and/or
- Conduct additional negotiations with the prosecutor.
If no continuance is needed and no acceptable plea bargain has been offered, your attorney will note various legal motions, schedule a hearing for them to be heard and schedule a trial date.
THE MOTIONS HEARING
The motions hearing can be the most important hearing in your defense, because it is at this hearing that the judge considers legal challenges to the admissibility of the prosecutors evidence, and a ruling in your favor can result in evidence being excluded from your trial. Successful pre-trial motions often compel the prosecutor to make an advantageous plea-bargain offer, or on occasion result in the dismissal of the charge!
Most courts will schedule the motions hearing for a date well in advance of the trial. However, it depends on the court's rule and jurisdiction, as some courts schedule most motions for the morning of trial, some other courts, schedule one week before trial. The court will rule on most motions immediately, but it may reserve ruling until after additional legal memoranda (called briefs) are filed arguing points of law applicable to the facts of the case.
Jury Trial Confirmation / Omnibus Hearing
The court will schedule a jury trial confirmation / omnibus hearing shortly before the date your case is scheduled to go to trial. At this hearing you have four options:
1) continue the case if there is a valid reason to do so (unavailable witness, failure of one side to have provided information to the other side as required by a previous order of the court, conflict in scheduling, etc.),
2) plead guilty as charged,
3) accept an advantageous plea bargain offer, or
4) set the case for trial.
THE TRIAL
A jury trial typically lasts 1 to 3 days. The trials that last a day usually have few witnesses. After the court considers preliminary matters, the first thing that will occur is jury selection known also as voir dire). This is the process whereby both sides ask the prospective jurors questions to determine their biases, views on police, etc., to enable them to excuse a certain allowable number each attorney feels may be adverse to the case theory position on the criminal matter.
The number of jurors selected for jury depends on whether it is a felony or gross /misdemeanor trial. For a felony jury trial the jury panel consists of 12 jurors. For a gross misdemeanor or simple misdemeanor trial the jury panel consists of 6 jurors.
After the jury is selected both lawyers give opening statements in which they outline for the jury what they expect the evidence to show. The defense attorney may choose to give his or her opening statement after the prosecutor has rested his or her case. The prosecutor then presents his or her witnesses. Typically those witnesses include:
- All investigating officers;
- Any civilian witnesses or government personnel that may be available and favorable to the prosecution;
At the conclusion of the prosecutor's case, the defense may, but is not required to present evidence.
In most cases, much of the defense has already been presented through the defense attorney's vigorous cross-examination of the prosecution witnesses. Typical defense witnesses include:
- People who observed the incident and are favorable to the defense;
- People who were a party to the incident and are favorable to the defense;
- Any experts retained;
The defendant also has the option to testify, but cannot be required to.
Most juries want to hear from the defendant personally, but there may be sound reasons your attorney will recommend against testifying. While the decision rests with the defendant, the defense attorney's advice should be considered very carefully.
After all the evidence is presented, the judge instructs the jury as to what the law is that they are expected to apply to the facts of the case. Then both lawyers present closing arguments.
Following argument, the jury will commence deliberations, which can last anywhere from 15 minutes to one or more days. In gross / misdemeanor trials only three outcomes are possible at this point:
- All six jurors can vote to acquit and the case will be over;
- All six jurors can vote to convict and the defendant will be found guilty; or
The jurors can deadlock without reaching a unanimous verdict. This results in a "hung" jury and the judge will declare a mistrial.
Depending on how the vote went [i.e. was it 12-1 (for a felony trial) or 5-1 (for a misdemeanor trial) to acquit or 5-1 to convict, or something in between], the prosecutor has the option of re-trying the case at a future date, offering a plea bargain to a reduced charge, or dismissing the case.
CLOSING COMMENTS
One thing that you must understand is the likelihood or probability of a reset or continuance of court dates. Court dates are subject to change at the last moment. Please make sure that your attorney knows where to reach you at all times.
Conflicts between cases invariably occur for a variety of reasons. For example, it is not unusual for two jury trials to be set for the same date. In these instances, court rules require that the older cases must be heard first. Going to court is not like going to the doctor. We cannot make an appointment. We go when they tell us to appear. This can be extremely stressful and disruptive to you, but you must realize that basically we are at the mercy of the court.
If you see that you are going to have a job-threatening or life-threatening conflict, please let your attorney know immediately. I have seen business meetings and vacations canceled because of court. Most judges have a focused tunnel vision when it comes to the scheduling of court time, and your problems are not always weighty enough to impress them.
The path to disposition is long and difficult, and we will do everything we can to help you through this stressful time.
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