The Criminal Process

//The Criminal Process
The Criminal Process 2017-11-13T15:30:14+00:00

Perhaps the most challenging aspect of a DUI charge is dealing with the stress associated with the criminal process. There are several stressful factors that will affect the defendant. The most difficult factor is the frightening experience of the arrest itself. It is very common to have nightmares about the ordeal and to find oneself thinking about it during daily activity.

Many people notice changes in aspects of their lives. This includes changes in diet, difficulties in completing daily activities, weight loss and sleepless nights. These are common occurrences. Those who are handling DUI charges should understand that they are not alone and their problems are not unique. Most people charged with the offense of driving under the influence are just common everyday people. They have never had a brush with the law. These people are not regular customers with the legal system. They should understand that the stress they feel is very normal.

Another difficulty that may arise and cause stress is the waiting period. In the majority of cases, your attorney can do nothing to speed up the waiting process. This is because the control lies with the clerk of the court, judges, and the prosecutor. They will move at their pace depending on the amount of cases that are ahead of your own. If a case gets delayed a few months, don’t worry. Your case must wait its turn in the regular rotation of cases. The average waiting period for a case is two or three months. But, in very rare instances, the case could run over a year.

In some cases, your attorney may also delay your case. This action goes by a continuance. These are intentionally extended by your attorney. This happens to provide accommodation for your case. A continuance will improve your chances of winning your case. Try not to stress during the waiting period. Your attorney’s actions will help your case. Trust in your attorney and in that their decisions are in your best interests.

After your arrest, the police will issue you a summons to appear in court. You may have to post a bond for your release. The police may also release you on a written promise to appear. Both will inform you of the date of your mandatory court appearance. Failing to appear in court may result in a crime. The state can charge you with the crime of failure to appear. Even the lowest charge of failure to appear carries penalties. The penalties include one year in jail and/or a $2,000 fine.

Initially, your case will appear on the “regular” docket. This is the docket to which all new cases are assigned. A case will likely stay on the regular docket for the first few court appearances. In certain situations, your case can get resolved while on this docket. Some courts allow the attorney to appear on your behalf. Others require the appearance of the client.

Failure to be in court can result in forfeiture of your bond. You could get a warrant for your arrest for this. Over the next few court appearances, the prosecution and your defense lawyer discuss the merits of your defenses. These discussions happen in private. One of the main reasons for this practice is that any information, when discussed in private, cannot be used in the prosecution of the case. If the discussions were conducted in open court, there would be witnesses. These witnesses could be called to testify about the case. It serves your benefit to allow this to happen.

If the discussions with the prosecutor and your attorney do not yield a satisfactory disposition, the matter will be set down for a judicial pretrial. Most courts have a judge who controls the criminal docket. This judge is called the presiding judge. This judge will sit as the final arbiter of the matter. This happens before it is determined that the case cannot be resolved without a trial. After a judicial pretrial, the court will make an offer to resolve the case. This happens after hearing from the prosecution and the defense lawyer. The sides often propose different disposition possibilities. The judge listens to both sides to see what is a reasonable disposition. The judge considers the legal and factual claims both sides make.

If you, your attorney and the state agree on a disposition of the case you may be required to do a number of things. Some of these things involve paying a fine, completing alcohol counseling or complying with probation. If you plead guilty to a crime, which may be punishable by some period of jail time. The judge must ask you a series of questions. This determines if you are knowingly and voluntarily pleading to the charges. The judge must also agree to give you the disposition that you agreed upon. This can happen even if the judge does not approve. The judge must allow you to withdraw your plea.

Plea Options

There are three ways to plead or be found guilty. The first way is a “straight” guilty plea. A straight plea means you agree with the allegations. The state is saying you committed a crime and you are agreeing you are guilty.

The second way you can plead guilty is under the Alford Doctrine. The Alford Doctrine means that you do not agree with some, or all of the facts that the state claims happened. However, in light of what you know the state has to prove, you wish to plead guilty. You choose to accept a definite disposition rather than risk going to trial.

The final way to plead guilty is to plead “solo contendere”.“Nolo contendere” is Latin for “no contest”. This means that you are not contesting the charges and not putting up any defenses to the charge. The judge, after hearing the charges, will find you guilty, and sentence you. A “nolo contendere” plea is often used in situations where you may be sued by another person. This is because this type of plea cannot be used against you in a civil case like a guilty plea could. The party that could sue you could be a person with whom you were involved with in an accident.

Filing Motions

If the case cannot be resolved without a trial, both attorneys are then given an opportunity to file motions. Motions, simply put, are “requests” that are made of the court to grant some type of “relief”. This relief is usually asking that some part of the state’s evidence be excluded from trial. Attorneys may seek to exclude a breath or blood test result or field evaluations. Or, they might want to exclude a custodial statement made by you after your detention, but before the Miranda advisement.

Discovery

In addition, your attorney will make a motion for the prosecutor to send them the “discovery” in your case. Discovery is a generic term. It relates to production of evidence that the state intends to present against you in court. An example of “discovery” is a list of the state’s witnesses against you, plus information on how to locate them. Obtaining discovery allows your attorney to be prepared for trial. One of the key aspects of discovery may be a videotape of your arrest, either at the scene, in the station or both. Most prosecutors’ offices in Connecticut follow an “open file” policy from the beginning of the case that allows your attorney to view the police report (some will allow a copy, while others only allow notes to be taken).

Oral Argument of Motions

Your attorney will then be given oral argument of these motions, which is an important step as it sometimes allows your attorney to attack various aspects of the state’s case prior to trial. The elimination of harmful evidence is the primary purpose and goal of “motions.” There will be no jury involved at the motions hearing, but rather, at a typical motions hearing the judge, your attorney, the prosecutor, the state’s witness (the arresting officer) and yourself would be present.

The judge will hear motions and argument from both sides, then grant or deny the motions, however most judges refuse to hear motions until the day of trial. This practice is not as desirable for you for many reasons, the two most important of which is that it limits your attorney’s time to obtain a transcript of important testimony of the state’s witnesses (commonly used for “impeachment”), and your attorney will have to prepare for both motions and trial, thereby costing a larger attorney fee.

Trial

Following the motions hearing is the trial, which can be either a jury trial (a six-person jury is used in misdemeanor cases) or a bench trial (heard only by the judge). If the case is set down for a trial, there will be a day when you and your attorney will be summoned to begin “jury selection” or “voir dire.” In Connecticut, our constitution allows for your defense attorney to question each independent potential juror about their knowledge of the case, the witnesses and there general outlook on life.

During this phase, your attorney tries to find the best possible candidates to sit on a jury and side with you. At the same time, the state attorney is looking to find the best possible jurors who will convict you. Depending on the exact charges against you, your lawyer and the state will each have a certain number of “challenges” which allows them to get rid of a potential jurors without having a reason. If your attorney or the state attorney tries to exclude a particular gender or race, however, the judge can stop them if the other side points it out.

Unlike on TV and in the movies, in Connecticut there are not long opening statements. In fact, unless there are unusual circumstances and a judge has approved them, there will be no opening statement in your case. The prosecutor will call the first witness for the state, which is usually the police officer. After the state has asked questions of the first witness, your defense lawyer will be allowed to “cross examine” the witness and this continues until the state has no more witnesses to call.

Common Misconceptions

According to the federal and state constitution, the defense does not have a burden to introduce any evidence. If the defense chooses not to do so, the sides would then make their closing arguments. However most of the time, the defense will call witnesses of their own, at which point the defense attorney will ask questions, and the prosecution will have a chance to cross-examine. After the defense has finished, the state then has a chance to bring in witnesses if they can rebut the evidence of the defense witnesses. If they do not call any, the case proceeds with closing arguments.

Closing Arguments

During closing arguments, both sides try to convince the jury to either find you guilty or not guilty (depending on the attorney). After closing arguments, the judge will instruct the jury on the law of the case, and how it is to be applied. Once that is done, the jury is sent to the jury room to deliberate. They elect a foreperson, and discuss the case until they have reached a unanimous verdict, which means that all of the jurors must be in agreement on the verdict. Once a decision has been made, the jury sends a note to the judge in order tell the court that they have come to a decision.

Sentencing

If they cannot agree, the judge may tell them to deliberate again, however if they decide that an unanimous decision cannot be found, the judge declares a mistrial. The jury might agree on a verdict. If this is the case, the judge then brings the jury into the courtroom and the clerk of the court asks the foreperson what the verdict is. If the jury finds you “not guilty” then the case is over. But, if the jury finds that you are guilty, the case will then continue on to sentencing phase.

When appearing for sentencing, which may happen the same day if the case is a misdemeanor, the judge may sentence you to the maximum period of jail time allowable for the crime. Oftentimes prior to sentencing, the judge will order the probation department to conduct a pre-sentence investigation and report, which serves to provide the judge with a better understanding of whom you are as a person. The probation department may suggest a certain way for the judge to structure the sentence or certain things to include (community service, counseling), however the judge ultimately decides the sentence.

Appeal

If you are convicted, you are permitted to an appeal, but you must hire a lawyer to represent you for this new phase, which unfortunately is normally a separate fee from your trial fee for your trial lawyer. Many times people simply hire the trial lawyer for the appeal because they already has knowledge of the case and has conducted research on the exact issues that will be appealed. The appeal only deals with legal issues, not factual issues, so it is not a retrial. Your lawyer then will review the court transcript to find questionable issues, such as the inclusion of improper evidence by the state or incorrect instruction on the law to the jury by the judge.

The appeal is filed within a few months and then the state is given time to file a brief in opposition. The case is then argued in front of a panel of three judges in Hartford, in which witnesses are not presented and a time limit is instituted for both sides. After the case is argued, the judges release a written decision, which either affirms the guilty verdict, or reverses the decision and a retrial begins. In rare circumstances, the reversal will complete the case and there will not be a retrial. If the original decision is affirmed however, your lawyer may appeal for review by the Supreme Court.