Get Started by Preparing
Hopefully, once you find and hire a lawyer, you’ll have a trusted advocate.
When it comes to criminal matters, unfortunately, finding and hiring a criminal-defense attorney is only the start of a long and arduous path. The more a defendant learns about the challenges ahead, and the better he understands how he can prepare, the more likely he will be to conquer struggles that complicate life for so many that experience the criminal justice system.
I don’t have precise statistics in front of me. Still, I don’t think anyone will argue that if federal prosecutors bring criminal charges against individuals, a sentencing hearing will follow more than six out of ten times. Before banging the gavel to signal finality, the judge frequently says:
- “I sentence you to the custody of the Attorney General.”
Several years ago, a federal judge in the Southern District of California invited our team to lead a panel discussion for other judges in his district. They wanted us to help judges understand what happens after they sentence a person to prison.
If federal judges don’t know what happens after they sentence a person, it’s fair to say that neither lawyers nor defendants know what to expect either. In fact, some defendants don’t even know how they got into the system.
How does it Start:
Relatively few Americans have more than a basic understanding of our nation’s criminal justice system. They know that law enforcement officers arrest people, district attorneys prosecute many of those who are arrested, and some people who are convicted go to jail or prison. It’s much more complicated than that, of course.
Although I’m not a lawyer, I’ve done a lot of research to get a better understanding of the system, and I found an excellent resource in Modern Criminal Procedure, 9th Edition, by Yale Kamisar, et al, published by West Group, (St. Paul. Minn: 1999). It’s a great resource for anyone that wants to get a more thorough understanding of the system.
Most people don’t need to read a legal treatise. The summary I provide below will give most defendants a better understanding of how the criminal justice machine works. That understanding may lead to more fluency, better communications, and better preparation for the journey ahead.
Again, we’re writing for laymen, for people who want a brief glimpse of what to expect if charged with a felony.
Start from the premise that our criminal justice system is designed to protect society. It doesn’t always seem that way for a defendant. When a defendant comes into the system, everything feels like a personal attack, and the complicated proceedings aren’t always easy to understand.
Lawyers talk about substantive laws (the laws that congress passed) and about proceedings (the rules by which the system is supposed to operate). It isn’t a perfect system, because it has evolved over multiple decades, and it’s designed to operate at scale. A system designed to process more than 1 million people each year doesn’t look too closely at personal characteristics and circumstances. It’s much more like moving a cog through an elaborate machine.
All branches of law enforcement work together to prosecute crimes. Just as some offenders will make every effort to evade detection and apprehension by law-enforcement officers, representatives of the criminal justice system will make every effort to convict a defendant.
Many defendants complain that law enforcement officers and prosecutors operate outside the scope of the rules in order to get convictions. Unfortunately, complaining doesn’t solve any problems. Once a person comes into the system, it’s best to think methodically. We need to learn as much as possible, and then engineer our way to the best outcome.
Throughout this book and course, we’ll offer insight that defendants may use—along with their counsel—to prepare.
Practically speaking, defendants would be well advised to expect law enforcement officers and prosecutors to use every means available for them to achieve their ends. Ultimately, prosecutors want to solve crimes and convict. In a perfect world those representatives of justice would dot every “I” and cross every “T” as they follow the rules in both the letter and the spirit of the law.
Years of working with society’s felons, however, frequently causes seasoned law enforcement officers to develop cynical perspectives of humanity. Sometimes, to get the outcome they want, they cut corners. They may even threaten. Let me give an example from a client that our team is working with now.
Sam is a healthcare professional. The prosecutor offered him an opportunity to plead guilty to a charge with a five-year cap. If Sam chose to exercise his right to a jury trial, the prosecutor threatened to bring charges against Sam’s wife, and to bring further charges that would expose Sam to more than 20 years in prison. Then, the prosecutor argued that Sam would have to agree to say that no one pressured, threatened, or induced him to take the plea.
From Sam’s perspective, the proceeding is inherently unfair. He would like to have had an opportunity to argue for his innocence. But he could not afford to expose his wife to the threat of criminal charges. He felt threatened and pressured to take the deal. Rather than justice, Sam said the prosecutor wanted a conviction.
Those who work in law enforcement tend to become ultra conservative. They may be rigid in their beliefs that people who are charged with crimes clearly did something wrong and ought to be punished. Such attitudes can result in offenders being charged with crimes that can result in convictions, as opposed to the offender being charged with precisely the crimes that the individual may have actually committed.
It would be wise, I think, for those who become entangled with the criminal justice process to anticipate a system influenced much more by Machiavelli, pursuing victory regardless of methods, rather than a system influenced by teachings of more enlightened leaders that encourage forgiveness, compassion, and concern for the individual.
In compliance with our nation’s Constitution, legislators elected to both houses of the U.S. Congress have played a significant role in establishing a body of federal laws that are supposed to govern the behavior of citizens. The Constitution also provides legislators from each individual state with authority to establish their own code of criminal laws for their state, and their own criminal justice processes for enforcing those laws statewide. Although the different jurisdictions frequently collaborate, our nation actually operates several different criminal justice systems:
- We have a system for the federal government,
- We have a system for each state,
- We have a system for the military, and
- We have another system for the District of Columbia.
It’s our responsibility as citizens to abide by these laws. When we do not, we subject ourselves to being charged with criminal offenses and experiencing the wrath of the criminal justice system.
Law enforcement officers are supposed to follow strictly prescribed procedures when charging a citizen with wrongdoing. In addition to federal and state rules for criminal procedure, published judicial opinions may also have an impact on criminal procedures.
Criminal procedures are complicated. They can be understood more easily when we think of the criminal justice system as a game. I use this metaphor for clarity, not to trivialize the conflict between accused and accuser.
Offenders, or “defendants” act as opponents of law enforcement officers and prosecutors. Both sides want to win. The defendants want to be acquitted, or to receive the least restrictive sanction. On the other side, law enforcement officers and prosecutors want to convict. They frequently argue for defendants to receive severe sanctions, without consideration for individual characteristics or mitigating factors. A judge will make the ultimate decision.
In this “game” of criminal justice, the judge acts as referee. Judges are charged with the responsibility of ensuring that all participants of the game follow procedures to ensure that due process is achieved. Although there are many ways this game may begin, it usually starts when someone reports a crime to a member of law enforcement.
Once the Crime is Reported:
The criminal justice process usually begins when a crime is reported or otherwise discovered by law enforcement officers. Law enforcement officers may learn about a crime in any number of ways.
- They may observe a crime being committed;
- They may learn about it because someone reports it;
- They may learn about it through investigation or by interrogating others.
Once law enforcement officers learn about a crime, it becomes a “reported crime” or a “known offense.”
Sometimes, as when law enforcement officers are present when a crime is being committed—or soon thereafter—the “investigation” begins with an on-scene arrest. Other times, as when law enforcement officers learn that a crime has been committed, but were not in a position to make an on-scene arrest, they have the responsibility of solving that crime.
They therefore launch a reactive investigation, where the officers will attempt to figure out:
- Whether a crime was in fact committed,
- Who committed the crime,
- What evidence there is of guilt, and
- How to locate the offender to make an arrest.
Proactive investigations, on the other hand, are aimed to solve crimes that are ongoing or that may take place in the future. These types of investigations place law enforcement officers in a position to uncover criminal activity, the specifics of which are not known, or where they do not have enough information to charge all whom may be participants in the crime.
Another type of pre-arrest investigation includes the prosecutorial investigation, which is generally conducted by a prosecutor. The prosecutor has the power to convene a grand jury (see below for discussion on the grand jury) and, through the power of the grand jury issue a subpoena. Individuals who receive such a subpoena must appear before the grand jury and answer questions that the prosecutor poses in the criminal investigation.
Since the person who received the subpoena does not have counsel present during the questioning, and the entire grand jury proceeding is orchestrated by a prosecutor, it has become routine for grand juries to rubber stamp the recommendations of the prosecutor.
An arrest, of course, is when the law enforcement officer takes a person into custody. Sometimes, the arrest occurs at the scene of a crime. In cases that evolved from reactive or proactive investigations, on the other hand, the officers will obtain an arrest warrant—usually from a magistrate judge—before taking the person into custody. In some cases, officers will allow the suspect to turn himself in. In other cases, law enforcement officers will make a spectacle. In those cases, the officers use an extreme show of force—frequently with weapons drawn—at an inconvenient time, like the break of dawn or during a person’s work hours.
If the person was arrested publicly, the officers will search him. They may search his vehicle, home, or office. They’re looking for contraband, weapons, or evidence of a crime. Then they transport the suspect to a jail, a courthouse, or some other type of holding facility for further processing, or “booking.”
During the booking procedure, the officers will conduct clerical procedures to memorialize the arrest. They record fingerprints and photograph the suspect (the well-known mug shots). If it’s a minor crime, authorities may release the suspect from the holding facility. If the alleged crime is more serious in nature, authorities may hold the suspect for several hours, or even days, until he can appear before a judge who will determine whether bail is appropriate. If the offender is held in lockup, it is likely that he will be ordered to undergo a strip search.
Immediately after the arrest, the post-arrest investigation begins. The first step is when the officers search the person—and possibly his vehicle, home, or office—for evidence that can be used against him. After that, law enforcement officers may conclude that little else needs to be done (in the event that they caught the suspect in the act), or they may continue with many of the same types of techniques used in reactive and proactive investigations, such as interviews and searches.
Deciding to Charge:
When law enforcement officers witness a crime, they make a decision on whether to charge the suspected offender. Then, after the individual has been processed through booking, superior officers may review the arrest and decide whether to allow it to proceed. If the law enforcement agency chooses to proceed with prosecution, the prosecutors will then review the charge.
The prosecutor may interview the arresting officer and review the evidence to determine whether the case is worthy of a filing of the criminal charge. Reasons why a prosecutor may decline to file charges include:
- Insufficient evidence;
- Witness difficulties;
- Due process problems;
- Alternatives to prosecution; and
- Diversion programs that enable the suspect to avoid a criminal record.
Even if the prosecutor initially chooses to charge an individual, he may change his decision. Later, he may determine that the charge is not justified or that a lesser charge is more appropriate. In those cases, the prosecutor would have to file a motion before the court detailing the prosecutor’s reasons to forego prosecution. The prosecutor would use the same screening factors identified above to determine the appropriateness of such a motion.
Filing the Complaint:
In many cases, if the charges pass the prosecutor’s screening, the next step will come when the prosecutor files the complaint, most likely with a magistrate judge. The complaint is usually a fairly brief document, concisely detailing the criminal allegations. When a complaint is used as the charging instrument, someone must sign the complaint under oath indicating that he or she believes the factual allegations of the complaint to be true. Usually it’s the victim or the investigating officer who signs the complaint. With the filing of the complaint, the suspect officially becomes a defendant in a criminal proceeding.
Review of the Arrest by Magistrate:
Many jurisdictions appoint magistrate judges to take some of the workload away from trial judges. Among other things, the magistrate judges handle many of the pre-trial matters.
After the prosecutor files the complaint with the court, but before the defendant’s first appearance, for example, it frequently will be a magistrate judge who reviews the charges against the defendant. If the defendant was arrested without a warrant and remains in custody, the magistrate must determine whether probable cause exists for the defendant’s continued detention. In the extremely rare instance that the judge finds that the prosecutor has not established probable cause, the prosecution either must produce more information or release the arrested person.
With the filing of the complaint, the defendant is brought before the judge “without unnecessary delay.” Several hours or several days may pass before the defendant sees a judge, depending on the circumstances. If a defendant is arrested late on a Friday afternoon, he may not see the judge until the following Monday.
The first appearance is generally a brief proceeding in which the magistrate determines that the person named on the complaint is the person before the court. After the magistrate is convinced that the appropriate person is present, the judge will read the charges made against the defendant, identify the defendant’s rights, and in felony cases, advise the defendant of the next step in the process, which is the preliminary hearing. The magistrate then sets a date for the preliminary hearing, which the defendant may choose to waive. The magistrate judge then will ask the defendant to enter a plea; if the defendant pleads not guilty, the judge will set a trial date.
Defendants are entitled to have counsel present at every stage of all felony criminal justice proceedings. If the individual cannot afford counsel, the court will provide a court-appointed attorney. A substantial percentage of all felony defendants go through their criminal justice proceedings with court-appointed counsel. These attorneys may work for a public defender service, or they may be in private practice but make themselves available to represent a limited number of indigent defendants. As a practical matter, the indigent defendants who use court-appointed counsel do not have much choice as to which attorney represents them.
If the defendant is in custody at the time of his first appearance, one of the most important functions of the proceeding is for the magistrate judge to determine whether bail is appropriate. Bail establishes the conditions under which the defendant can be released from confinement until his case is decided.
If the magistrate judge agrees that bail is warranted in the case, he may require the defendant to post bail in cash, with a surety bond, or by signing over a deed to property. The judge also may accept the defendant’s personal guarantee that he will present himself for trial.
In general, the magistrate is expected to impose such bail conditions as appear reasonably necessary to assure that the defendant will make court appearances as scheduled throughout the criminal justice proceedings. There is a presumption that a defendant is entitled to bail. Unfortunately, in drug cases or other serious offenses, judges refuse to release a defendant on bail. The magistrate generally looks to the seriousness of the crime, the defendant’s criminal history, the defendant’s risk of flight, and the defendant’s ties to the community when deliberating over the appropriate bail conditions.
After the first appearance, the next scheduled step is the preliminary hearing. Defendants who choose to plead guilty frequently waive the preliminary hearing. Some jurisdictions allow the prosecutor to bypass the preliminary hearing, which is yet another screening of the charge, by immediately obtaining a grand jury indictment.
In jurisdictions that allow preliminary hearings, magistrate judge presides over this first step. Since this phase of the process is adversarial in nature, the defendant should have counsel present to represent him. Generally, during this proceeding, the prosecutor will provide witnesses and the defendant’s counsel will have the opportunity to cross-examine. After listening to the proceeding, the magistrate judge will determine whether to advance the case to the next level—which either is a grand jury review or the filing of a criminal information or complaint.
Grand Jury Review:
In the federal system, all felony prosecutions require a grand jury review. The only exception is when the defendant waives this review and agrees to be charged with a criminal complaint or information.
States vary in their requirements for charges. The primary function of the grand jury review is to determine whether sufficient evidence exists to proceed with a trial on the criminal charges. A number of randomly chosen citizens sit on the grand jury panel, usually between 12 and 23. Those grand jurors listen as the prosecution presents its case. The prosecution uses its subpoena power to call witnesses before the grand jury, then questions those witnesses under oath.
Witnesses do not have the right to legal counsel during the grand jury proceeding, and there is no cross-examination. Accordingly, the proceeding is really a one-sided show for the prosecution.
When the prosecution does persuade the grand jury that there is merit to the criminal charge, the grand jury returns an indictment. Although the grand jury is said to be a screening device, many in the legal profession ridicule it. Since defendants can’t speak on their own behalf, and targets may not even know that a prosecutor convened a grand jury, prosecutors have their way. They get to build arguments without giving the target an opportunity to respond. For that reason, experts say a prosecutor could use a grand jury to indict a ham sandwich.
When a grand jury does issue an indictment, that document is filed with the trial court, replacing the original complaint or accusatory instrument in the case. If a grand jury review was not sought, either because it was not required or it was waived, the prosecutor simply would file the criminal complaint or information with the trial court.
The Arraignment on the Criminal Information, Complaint, or Indictment:
After the accusatory instrument is filed with the trial court, the defendant is brought before the trial court to be informed of the charges against him. The trial court judge will ask the defendant how he pleads. Ordinarily, the options for the defendant are to plead guilty or not guilty.
This procedure is known as arraigning the defendant. In most cases, defendants plead not guilty at the earliest stages. This strategy gives the defendant more time to examine the strength of the government’s case. It also allows time for the possible negotiation of more favorable conditions under which the defendant will agree to plead guilty—as most defendants eventually do.
Plea Bargaining and Proffers:
Prosecutors want defendants to plead guilty. Ultimately, they want a conviction. Trials require substantial amounts of government time and resources. Further, the outcome of a trial is uncertain.
Accordingly, prosecutors frequently grant concessions to induce defendants to plead guilty. For example, they may agree to dismiss certain charges, or they may agree not to prosecute a family member. Prosecutors want to avoid the time and expense of a trial. They may invite a defendant to proffer what he would show through trial, or the prosecutorial team may proffer what it could prove during a trial. All of those negotiations are designed to come to an agreement that would avoid a trial.
This procedure is frequently called plea bargaining. The prosecutor has the authority to charge a defendant with crimes that carry certain sentences. They also have the ability to recommend certain sentences within the statute or guideline range.
In the end, the judge imposes a sentence. Although the judge may listen to the prosecutor’s sentencing recommendation, prosecutors do not have the power to bind a judge’s decision.
The vast majority of defendants enter guilty pleas. Frequently, defendants that plead guilty spend much of their time in prison second-guessing their decision. Experience convinces us that defendants who know they are guilty are vastly better off:
- To accept complete responsibility,
- To express remorse,
- To plead guilty at the earliest possible stage, and
- To work toward an effective sentence-mitigation strategy.
Like all decisions where liberty is at stake, deciding whether to plead guilty is a legal decision that must be made with the guidance of counsel.
After the arraignment, attorneys for the defendant may choose to file multiple pretrial motions before the trial court in an effort to help them develop a better understanding of the government’s evidence. These motions may:
- Attack the charging instrument—either the criminal information or the grand jury process;
- Ask for an order directing the government to disclose evidence;
- Request the court to suppress evidence that the defendant believes was obtained in violation of the defendant’s Constitutional rights.
If the case has not been dismissed, and the defendant has not pled guilty, the next step in the criminal justice procedure is the trial. Defendants have a right to a speedy trial, but the defendant may waive that right. The prosecutor may look for excusable opportunities to extend the pretrial time period.
Both sides of the adversarial process look for every opportunity to prepare their case. In a typical jurisdiction, it is reasonable to expect five to ten months to pass from the time of arrest until the time the trial begins. Some trials may require only a few hours, others several weeks. Complicated cases may stretch into several months—or even years—before both sides present their closing arguments.
Although some defendants choose a bench trial, with only a judge to determine one’s guilt or innocence, all felony defendants have the right to a jury trial. In a jury trial, a group of randomly selected citizens is charged with the responsibility of listening to the evidence that the trial judge allows to be presented.
The jurors are supposed to presume that the defendant is not guilty of the charges until the trial judge instructs them to begin deliberating on whether the prosecution has proven its case.
The trial begins with the voir dire process, which is the questioning of jurors. The judge, and in some jurisdictions the attorneys play a role in questioning the prospective jurors. During voir dire, both the defense and prosecution will try to filter prospective jurors that may be biased against their side.
The theory may hold that both sides are seeking justice. In reality, the prosecution is seeking a conviction and the defendant is seeking an acquittal. Each side is looking for the best group of jurors to deliver the desired verdict. The judge will determine how many prospective jurors each lawyer can remove from the potential jury.
Once the jury has been chosen and sworn, the prosecution and the defense may begin with an opening argument. After opening arguments, the prosecution will begin presenting its case, usually with live witnesses whom the defense may then cross-examine.
After the prosecution rests, the defense will have an opportunity to present its case and the prosecutor can cross-examine its witnesses. Then, after both sides have rested, the prosecutor will make a closing argument. The defendant’s attorney will have an opportunity to make a closing argument. The prosecutor gets the last word, though, in response to the defense attorney’s closing argument.
Finally, the judge will read a set of instructions to the jury. Once the judge releases the jury to the jury room, members are supposed to start considering all of the evidence as they deliberate on whether the prosecution has proven its case.
To obtain a conviction, each member of the jury must find the defendant guilty beyond a reasonable doubt. Once the jury reaches a verdict, and it’s announced in court, the judge concludes the trial.
If it’s a guilty verdict, whether after a trial or as a result of a plea, a series of post-conviction proceedings will follow. In the next chapter, we’ll offer insight on post-conviction proceedings in the criminal justice system.