The Charging Process

FIRST APPEARANCE

If a defendant is arrested and unable to post a bond, they are entitled to appear before a judge within 24 hours. First Appearance, the defendant is informed of the charges for which they were arrested and is advised of their rights. The Judge reviews the law enforcement reports and may raise or lower the bond amount or release the defendant on their own recognizance.

FILING OF CRIMINAL CHARGES

When the State Attorney’s Office receives a formal complaint from a law enforcement agency, an Assistant State Attorney assigned to the case will review the reports and interview witnesses. It is important to cooperate with this office to ensure that all the information about the crime is provided.

This review of the case will determine if there is sufficient evidence to pursue criminal prosecution. If so, the attorney will file the formal charging document, called “Information,” with the court. You will be notified by letter of this decision. If there is insufficient evidence to file criminal charges, the attorney will generate a document indicating no charges will be filed.

If “Information” is filed and the defendant has not yet been arrested, an order (a summons) for the defendant to appear in court or order (a capias or a warrant) for the arrest of the defendant will be issued.

VICTIM IMPACT/RESTITUTION STATEMENT

The Office of the State Attorney provides each victim with a Victim Impact/Restitution Statement for completion. This form affords the opportunity to provide information concerning the effect of the crime, the financial losses incurred, and your recommendation for a sentence in this case.

Please complete the statement promptly as requested and return it to the Prosecuting Attorney’s Office. It would be best if you documented all financial losses claimed by providing COPIES of medical bills, damage estimates, proof of fair market value, or receipts for lost property.

If you have any questions regarding the form or would like assistance in completing the form, please call the Victims’ Rights Victim Assistance Department at your local law enforcement agency or the prosecutor’s office.

VICTIM COMPENSATION

Victim compensation laws were established to financially aid innocent victims/survivors of violent crime (including DUI and Hit & Run charges). Victim compensation is a payer of last resort that provides benefits within limits. In the event, the crime has produced financial hardship for medical expenses, funeral costs, counseling, loss of support, and lost wages. Loss of property is not covered except in a limited amount for an elderly or disabled adult who suffered a property loss due to a crime that substantially limits normal daily living activities. There is no other source of reimbursement.

YOU MAY BE ELIGIBLE IF YOU ARE…..

• An adult victim who has been physically injured as a result of a crime.
• A victim who has suffered psychiatric or psychological injury as a result of a forcible felony.
• A surviving spouse, parent, child, or principal dependent of a deceased victim.
• The parent or guardian of a minor or incompetent victim that has been injured as a result of a crime.
• The parent or guardian of a child witness (16 or under) who was present at a violent crime scene and suffered psychological injury.
• An elderly or disabled adult who lost property as a result of a crime.

AND IF……..

• The crime was reported to Law Enforcement within 72 hours.
• The application was filed within one year after the crime (with some exceptions).
• The victim has fully cooperated with law enforcement and the Prosecuting Attorney’s Office.
• The victim was not engaged in unlawful activity.
• The victim did not contribute to their own injuries.

Local law enforcement or the Prosecuting Attorney’s Office can provide an application for Victim Compensation and will gladly assist, whenever necessary, in completing the application. Please do not hesitate to contact them for help.

ARRAIGNMENT

As the victim, you have the right to be present at the arraignment. However, your presence is not required.

At the arraignment, the defendant will be formally advised of the charges filed by the State. The defendant is also informed of the right to an attorney. If the accused indicates an inability to afford an attorney but wishes to be represented, the Judge may appoint an attorney from the Public Defender’s Office to the case.

At a Felony Arraignment, the defendant may not necessarily appear in the proper legal documents that have been filed. Due to the serious nature of felony charges, a judge rarely accepts a “guilty” or “no contest” plea at the arraignment. Therefore, other pretrial proceedings will be scheduled.

At a Misdemeanor Arraignment, the Judge will, quite frequently, accept a plea of “guilty” or “no contest.” Should the defendant enter such a plea and the judge can impose a sentence immediately, the victim, having made their presence known, will then be allowed to address the court regarding restitution and sentencing. If the defendant requests a trial, a trial date will be set at some future pre-trial proceeding, and the victim will be notified of the date.

DEPOSITIONS

A deposition is an interview or testimony taken under oath of any witnesses in a case by the defendant’s attorney after formal charges have been filed. In most cases, an assistant state attorney will also be present during the deposition, which may be recorded by either a court reporter or by a tape recorder which will later be produced in a written transcript. The defendant is not present during the deposition, usually taken outside the courtroom, usually in a private office. The defense attorney may elect to subpoena you for a certain date, time, and place and, if you fail to appear, you may be held in contempt of court, and the case may be continued.

It is important to be prepared for your deposition and provide truthful testimony to the defense attorney. During your deposition, the statements you make may be used in the trial to show inconsistencies between your deposition statements and trial testimony.

Attending a deposition for the first time may create anxiety. You have the right to be accompanied by a victim advocate if you so choose. Any questions or concerns you may have may be addressed to the Victims’ Rights Counselors or the Assistant State Attorney prosecuting the case.

PRE-TRIAL PROCEEDINGS

NOTE: Case Management, Pre-Trial Conferences, Plea Hearings, Motion Hearings, and Docket Sounding are all types of pre-trial proceedings.

CASE MANAGEMENT is a scheduled time when the prosecutor and the defendant’s attorney, along with the Judge, select a trial period for the case to be heard. Generally, in felony court, if the defendant’s attorney indicates the defendant’s desire to enter a “No Contest” or “Guilty” plea rather than exercise the constitutional right to a trial, a “PLEA HEARING” will be scheduled at another date on the Judge’s calendar. Every effort will be made to notify the victim.

DOCKET SOUNDING is the last effort of the Judge and the attorneys involved to schedule specific days and times for trials just before the beginning of the trial docket. All victims and witnesses will receive a subpoena for a time certain when scheduled.

PRE-TRIAL hearings and DOCKET SOUNDING in Misdemeanor Court are similar to Case Management and Docket Sounding in Felony Court with the exception that, generally, the Judge will accept a Defendant’s plea of “No Contest” or “Guilty” at any of these times. When no such plea is presented, a trial date is set, and victims and witnesses are usually notified by subpoena.

The victim has the right to attend any of these public hearings. However, your presence is neither necessary nor required unless subpoenaed or specifically requested by the attorney prosecuting the case. Don’t hesitate to contact the Victim Rights Department or the Assistant State Attorney with any questions concerning your attendance.

TRIAL PROCEDURE
A jury is selected by the State and Defense Attorney and seated as the first item of the procedure. The trial begins with an “opening statement” from the Assistant State Attorney, hereinafter called “Prosecutor,” and the Defense Attorney. The opening statement outlines the facts that each party expects to establish during the trial. The Prosecutor presents the State’s case first by calling and questioning witnesses on “direct examination.” After direct examination of each witness, the defendant’s attorney is permitted to question the witness by “cross-examination.”

After the State’s presentation, the Defense is entitled to present its case by direct examination followed by cross-examination of each witness by the prosecutor. Finally, each attorney presents a closing argument that offers a summation of the facts presented during the trial. The judge then instructs the jury on the law and defines the issues, and instructs the jury to reach a fair verdict based on the evidence. The jury’s deliberations are in private and, to convict, their verdict must be unanimous.

Again, victims and witnesses have the right to be present in the Courtroom during a trial unless their presence is determined to be prejudicial by the Judge. This option should be discussed with the prosecutor in the case.

SENTENCING

Statewide sentencing guidelines became effective on October 1, 1983. These guidelines provide a range of recommended sentences for all felony cases. The Court must sentence according to these guidelines unless the Court states a clear and convincing reason it chooses to sentence outside the guidelines.

The sentencing of misdemeanor offenses remains the discretion of the trial judge. The Trial Judge in misdemeanor matters may impose any sentence up to the maximum allowed by state law.

As a victim, you have the right to be present at the sentencing of the defendant. Please advise the prosecutor or the Victim Rights Department of your desire to attend, and you will be notified when sentencing will occur. You may address the court to state your feelings concerning the impact of this crime on your life, necessary restitution, and desired to sentence at said hearing. Should you choose not to make an oral statement, you may submit a written statement to the prosecutor before sentencing to be read into the record.

RESTITUTION

At sentencing, the Court may order a defendant to pay restitution for the damage or loss caused by a crime. If the defendant is sentenced to jail or prison, the restitution may not be paid until after the defendant’s release if the incarceration is followed by probation. If ordered as a condition of probation or community control, the appropriate probation officer will supervise the payment of restitution. Therefore, your obligation is to keep your address current with the proper agency. If the sentence is solely incarceration, the judge may order restitution as a civil judgment.

MIRANDA WARNING

Before proceeding, there is a difference between the Fifth Amendment privilege against self-incrimination and the Miranda doctrine, rules, or warnings (hereafter, usually just Miranda).

The former protects against the use of compelled statements in judicial, administrative, and congressional proceedings and before other investigative bodies. The latter contains specific rules governing in-custody interrogations.

Miranda is required by and enforced under the Fifth Amendment but is only part of it. The Fifth Amendment is broader than Miranda, as the Amendment is also the basis for the right of a defendant or witness not to testify and other constitutional mandates, and both differ from the Sixth Amendment’s concerns.

Miranda consists of four warnings and sets forth the order in which the warnings are to be given to help alleviate the pressure of the interrogation room. The Miranda decision requires that, before custodial questioning commences, a suspect who is in custody (not free to leave) must be told that: You have the right to remain silent; anything you say can be used against you in a court of law; you have the right to an attorney at the interrogation; and, if you cannot afford an attorney one will be appointed for you. The police should then obtain a valid waiver of these rights by the suspect or terminate questioning.

There is a difference between the issues presented by whether Miranda warnings were properly given and the voluntariness of a confession in criminal prosecution. In the latter situation, the question is whether, under the circumstances, the statements were given voluntarily, consistent with the requirements of the Due Process Clause. To be admissible, a statement must be voluntary, not obtained by coercion or improper inducement. Confessions are presumed to be involuntary. The burden is on the state to make a prima facie showing that the defendant’s statements were made voluntarily.

Miranda Based on Fifth Amendment/ Voluntariness on Fourteenth

As noted and more fully explained, the preclusion of evidence obtained in violation of Miranda is based on the Fifth Amendment privilege against self-incrimination. The preclusion of an involuntary confession, on the other hand, is based on the Due Process Clause of the Fourteenth Amendment and applies to confessions that are the product of coercion or other methods offensive to due process. Before Miranda, decided in 1966, no warnings were given, and the voluntariness of any statement was litigated in most instances.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court held that certain warnings must be given before a suspect’s statement made during custodial interrogation could be admitted in evidence. Dickerson v. the U.S. 530 U.S. 428, 431-432, 120 S. Ct. 2326, 2329 (U.S.,2000). Cases recognized two constitutional bases for the requirement that a confession is voluntary to be admitted into evidence: the Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment. The due process test takes into consideration “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.”

The Court never abandoned this due process jurisprudence and thus continues to exclude confessions that were obtained involuntarily. But the Court’s decisions in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), and Miranda changed the focus of much of the inquiry in determining the admissibility of suspects’ incriminating statements. In Malloy, The Court held that the Fifth Amendment’s Self-Incrimination Clause is incorporated in the Due Process Clause of the Fourteenth Amendment and thus applies to the States. 378 U.S., at 6-11, 84 S.Ct. 1489. The Court decided Miranda on the heels of Malloy.

FRUIT OF THE POISONOUS TREE

Evidence was gathered with the aid of information obtained unconstitutionally. Oregon v. Elstad, 470 U.S. 298, 304, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985); see also Brown v. Illinois, 422 U.S.
590, 601-02, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975).

Although the fruit of the poisonous tree doctrine applies to Fourth Amendment violations, the United States Supreme Court has imported the poisonous tree doctrine into Fifth Amendment violations in the limited circumstance where coerced statements made during interrogation directly produce additional evidence. Elstad, 470 U.S. at 310. The Court differentiated between coerced statements and statements made after a Miranda violation. Id. It held that “actual coercion” means the accused has been “compelled … to be a witness against himself” in violation of the Fifth Amendment.

U.S. Const. Amend. V. Conversely, a failure to adhere to Miranda does not rise to a Fifth Amendment violation. New York v. Quarles, 467 U.S. 649, 654, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). Instead, a Miranda violation presumes only that “the privilege against compulsory self-incrimination has not been intelligently exercised.” Elstad, 470 U.S. at 310. Thus, because Miranda violations do not rise to actual coercion in violation of the Fifth Amendment, the fruit of the poisonous tree doctrine does not apply. Id. at 304