FAQs: Criminal Law
What are the different stages of a criminal case?
The criminal justice process begins as soon as a person is arrested. Determining what constitutes a valid arrest raises many issues that can affect the constitutional rights of the defendant. An arrest generally takes place when the police exercises control over a person thereby preventing them from leaving.
How does the prosecutor decide whether to file charges against the defendant? The following constitutes some factors in the prosecutor’s decision making process:
Was the evidence legally obtained? Some cases have legal problems that could get them thrown out of court (i.e. police officer conducts an invalid search thereby violating the defendant's constitutional rights making the evidence inadmissible in court).
Is there enough evidence to make a conviction probable? If the evidence is not very convincing, it would not be worth the time and expense of a trial.
State Attorney’s Office has limited resources and must focus on more serious crimes.
Prosecutor does not have to press charges. A criminal case is between the State of Florida and the accused. So the victim does not have the authority to make the prosecutor press charges.
What does Nolle Prosse or a No Information mean? A nolle prosse or no information is when the State Attorney’s office voluntarily decides not to file charges against you.
2. Booking and Bail
Booking
After an arrest, the criminal suspect is usually “booked," or "processed" in order to obtain the suspect’s personal information, criminal background, fingerprints and photographs.
Bail
Criminal suspects arrested for minor offenses may merely be given a written citation and released. However, a defendant that has not been released and remains in police custody may have the opportunity to pay money in exchange for their release, as long as the crime was not very serious. As a condition of the release, the defendant promises to appear in court for all scheduled criminal proceedings. If a person is not allowed to post bail after being booked, a judge may decide later, at a separate hearing or the arraignment, whether to allow release on bail.
Will I get a bond?
In most cases the police officer will set a bond amount. If the police officer does not set a bond, then the judge can when the defendant appears in court within 24 hours of the arrest. If the defendant is arrested for a violation of probation the judge may not give the defendant a bond until the defendant goes before the judge that placed the defendant on probation.
What happens if the defendant cannot afford to pay the entire amount of the bail? A "bond" may be posted to cover the full amount of bail. If the defendant fails to appear in court, the full bail amount will have to be paid. A defendant can obtain a bond from a bail bond agency that charges a fee for posting the bond (usually 10% of the bail amount). The bail bond agency will be responsible for paying the full bail amount if the defendant fails to appear as promised.
What does "Release on your Own Recognizance” (ROR) mean? When a defendant is arrested, booked, and granted "own recognizance" release, no bail money needs to be paid to the court, and no bond is posted. The defendant is merely released after promising, in writing, to appear in court for all upcoming proceedings. If the defendant fails to appear in criminal court as scheduled, then they will be subject to an immediate arrest and forfeiting any possibility for being released on bail.
3. Arraignment
What happens after the defendant has been arrested and processed? The defendant will have a hearing within 24 hours of the arrest. The court will then set an arraignment in order to allow the judge to:
- Read the criminal charge(s) against the Defendant;
- Ask the defendant if they need the assistance of an attorney;
- Ask the defendant how they will plead to the criminal charges that have been filed against them (i.e. "Guilty," "Not Guilty," or "No Contest");
- Announce the date of future proceedings in the case (i.e. disposition, preliminary hearing, pre-trial motions, and trial).
Can the defendant change judges if they do not like the assigned judge? The defendant’s case is assigned to a judge administratively. A defendant cannot pick the judge. If a conflict or issue exists between the defendant and the judge, the defense attorney can then file a Motion for Recusal or the judge can themselves if a conflict exists.
4. Plea Bargains
Most criminal cases are resolved through a "plea bargain". A plea bargain is when the defendant agrees to plead guilty, usually to a lesser charge than one for which the defendant could stand trial, in exchange for a more lenient sentence or having charges dismissed. Plea bargains are generally encouraged by the court system due to overburdened criminal court calendars and overcrowded jails.
5. Pre-Trial Motions
Pre-trial motions are tools used by the State Attorney and Defense Attorney in an effort to set the boundaries for trial (i.e. Motion to Suppress exists where there has been an illegal stop, search or seizure or when a constitutional right has been violated wherein the defense attorney requests the court throw out the illegally obtain evidence).
6. Trial
a) Jury Selection. Some criminal cases are heard by the judge alone (called a “bench trial”), while other are presented to the jury. During jury selection, the judge, prosecutor, and defendant question a pool of potential jurors and ask them questions pertaining to personal opinions and/or life experiences that may pertain to the case. The judge can excuse potential jurors at this stage, based on their responses to the questions. The prosecutor and the defense attorney may also exclude jurors through the use of "peremptory challenges" and challenges "for cause." A peremptory challenge can be used to exclude a juror for any non-discriminatory reason, and a challenge for cause can be used to exclude a juror who has shown that he or she cannot be truly objective in deciding the case.
b) Opening Statements. The prosecutor and defense attorney have the opportunity to conduct an opening statement. No witnesses testify at this stage. Since the prosecutor has the "burden of proof" at trial to prove all elements of the offense “beyond a reasonable doubt”, the prosecutor's opening statement is given first. In some cases, the defense attorney may wait until the conclusion of the prosecutor’s case in chief before making an opening statement.
c) Witness Testimony and Cross-Examination. At this stage, both the prosecutor and the defense attorney have the chance to present their “case-in-chief" to the jury. After the witness is sworn in by taking an oath to tell the truth, the party who called the witness to the stand questions the witness through "direct examination” wherein they elicit information from the witness through a question-and-answer process. After the direct examination, the opposing party has an opportunity to question the witness through a "cross-examination" in an effort to impeach the witness's credibility and testimony. After cross-examination, the side that originally called the witness has a second opportunity to question the witness through a "re-direct examination," in an effort to re-establish the credibility of the witness.
After the prosecutor concludes its case-in-chief, the defense attorney can present its own evidence in the same proactive manner.
After both sides have presented their case-in-chief, both sides "rest", meaning that no more evidence will be presented to the jury.
d) Closing Arguments. The closing argument is an opportunity for both sides to sum up their case to the jury
e) Jury Instruction. In this part of the trial, the judge gives the jury the set of legal standards it will need to decide the outcome of the trial. The judge also describes key concepts, such as "guilt beyond a reasonable doubt," and defines any crimes the jury may consider, based on the evidence presented at trial.
f) Jury Deliberation and Verdict. This is the when the jury discusses the case in private. Once the jury reaches a verdict, the jury foreperson informs the judge, and the judge usually announces the verdict in open court.
7. Sentencing
After the defendant is convicted of a crime, whether through a guilty plea, plea bargain, or jury verdict, the appropriate legal punishment is determined at this stage. If convicted, the defendant may face the following sentence:
- Fines
- Incarceration in jail (shorter-term)
- Incarceration in prison (longer-term)
- Probation
- A suspended sentence, which takes effect if conditions such as probation are violated
- Payment of restitution to the crime victim
- Community service
- Drug and alcohol rehabilitation
What exactly does probation mean? Probation takes place after conviction, but before the sentence is served. In other words, the sentence has been decided, but the judge "holds back" on imposing it in order to give a young or first-time offender a second chance. If the person on probation is found at a hearing to have failed to follow the court's orders or disobeys the probation officer, the sentence will be imposed and the convicted person will go to prison.
8. Appeal
An individual who has been convicted of a crime may "appeal" their case thereby asking a higher court to review certain aspects of the case for legal error as to either the conviction itself or the sentence imposed.
What do I do if I get pulled over for a ticket?
A ticket can fall under one of two categories:
- Civil Infraction
- Does not carry jail time;
- Can expose you to points on your license which may increase your insurance premiums significantly;
- Optional court date;
- Example—careless driving.
- Criminal Infraction
- may carry jail time;
- Requires a court date or a warrant will be issued for the Defendant’s failure to appear.
- Example—driving with an invalid driver’s license.
What do I do if I get pulled over for DUI?
Having a driver’s license in the State of Florida means that you agree to perform certain tests that a police officer may ask you to take in order to determine if you are driving while under the influence of alcohol or some other drug. One common test given to those suspected of drinking and driving is the breathalyzer. This test is performed on a machine that requires you to blow into a tube in order to determine your breath’s alcohol content. If you are charged with DUI, you have 10 days in which to request that the Administrative Bureau of the Department of Motor Vehicles give you a hearing, commonly referred to as a formal review. Because your license depends on it, make sure you contact an attorney as soon as you get the DUI so that your hearing can be requested. Attorneys can try to minimize the amount of time that you spend without a license after a DUI.
