Criminal Procedure 101 |
confusing and frightening. What happens now? What happens next? The purpose of this article is to give a brief overview of what a person can expect if he or she is charged with a crime in the State of Georgia. Please keep in mind that this information is general in scope, and that each county in Georgia is a little different from the others in terms of procedures and policies. Most contact with the criminal justice system will begin with an arrest. There are typically two ways in which an arrest warrant will be issued. First, if a police officer arrives at the scene and determines there is probable cause for an arrest, he or she can take the person into custody immediately, and obtain an arrest warrant after the actual arrest. If the police decline to make an arrest, or if the police are never called, the other method used to obtain an arrest warrant is called a warrant application. This is the process whereby a person can go to the Magistrate Court in the county in which the offense occurred, and fill out a complaint alleging what the offense is and who committed the offense. This is a sworn statement that is then reviewed by the Magistrate Judge. The judge can either issue an arrest warrant at that time, or set the matter down for a warrant application hearing. This is a hearing whereby the judge will listen to the accusations made by the complaining party as well as listen to any defense the accused party may present before deciding if there is probable cause to issue a warrant in that particular case. Once an arrest warrant is signed by a Magistrate Judge, the next step is for the defendant to be taken into custody. One of the most often asked questions is whether or not the police officer must read a person their rights when they are arrested. Under Miranda vs. Arizona, a police officer must only inform a person of their rights when they are being asked to make a statement after they are taken into custody. If these Miranda warnings are not read and a statement is given, the remedy would be for that statement to be excluded from evidence. An arrest is never invalidated because an officer did not read the Miranda warnings to the person being arrested. The next step is for the arrested person to make bond, if possible. Setting a bond, or bail, for a person is the Court's method of assuring the defendant's presence at trial. If a person posts a bond by any of the methods described below and does not return to court for his or her court date, that bond amount is forfeited and a bench warrant will be issued for that person's arrest. If a person does not make bond, or have a bond set for him, that person will remain in custody until the case is brought before a judge. Some offenses are not bondable before a magistrate judge. In these cases, a motion must be made before a superior court judge to have a bond set. If the person who is arrested is already on probation or parole, or is arrested on a bench warrant for failure to appear at an earlier court date, many times a bond will not be set. In these situations, the person will remain in custody until he or she is brought before the judge who either issued the bench warrant or placed the person on probation. Different counties and municipalities have different methods of setting the bond. Sometimes, the bond amount will be specified on the arrest warrant. In that case, once a person is arrested, he or she can immediately make arrangements to be bonded out of jail. In many cases, especially those involving a felony, the person who is arrested will be taken before a magistrate judge within 72 hours and that judge will determine the bond amount. The judge will consider a number of factors, such as the person's ties to the community, the offense involved, and any prior criminal history. There are typically three ways in which a person may be bonded out of jail. First, a person can put up the entire amount of the bond himself. Once the case is disposed of, either by dismissal, plea, or trial, the entire bond amount will be returned to the person who posted the bond. The second method is by posting a property bond. In order to post a property bond, a person must have enough equity in real property to cover the amount of the bond. The property should be located in the same county as the offense. Some counties will accept bonds against property located in other counties, but certain procedures must be followed before it will be accepted. The county sheriff's office should be contacted for more information. In the event a property bond is posted, a lien will be placed against that property in the amount of the bond. Once the case is disposed of, the lien will be removed. The third, and most popular, method of bonding someone out of jail is going through a bondsman. In this situation, a percentage of the bond amount is paid to the bonding company, who will then put up the entire amount of the bond with the court. In cases where the bond is set at less than $10,000, the bonding company will usually charge 12% of the bond. In cases where the bond is over $10,000, bonding companies usually require 15% of the principal amount of the bond. Once the case is disposed of, the court will refund the bond amount directly to the bonding companies. In most cases, the defendant will not receive any portion of the money back as the percentage paid to the bonding company represents the bonding company's fee. Once a person has been arrested, the case is transferred to the Court that has jurisdiction over that particular offense. In most larger counties, misdemeanors are handled in State Court and are prosecuted by the Solicitor's Office. Felonies are transferred to the Superior Court and are prosecuted by the District Attorney's Office. In smaller counties, both types of cases are handled in Superior Court. Every person must be formally charged with an offense. There are two methods by which this is accomplished. For most felony offenses, the case is taken before a grand jury for indictment. A grand jury consists of a panel of twenty-four citizens of the county whose duty is to determine whether there is sufficient evidence to warrant the prosecution of a particular crime. If they determine that there is sufficient evidence, an indictment against the defendant is returned, and that defendant stands formally charged. In certain situations, including most misdemeanors, a document known as an accusation is filed against the defendant, which has the same effect as an indictment, but is drawn and filed by the prosecuting office. Once an accusation or indictment has been returned against a defendant, a case number is then assigned and the case is randomly assigned to a judge with jurisdiction over that type of case. The case is then placed on what is known as an arraignment calendar. Arraignment is usually the defendant's first court appearance, and the purpose is to make sure that the defendant is aware of what he or she is charged with, as well as to enter that person's plea to those charges. If a guilty plea is entered at arraignment, the case is disposed of, and the defendant will not have to return for any further court appearances. If a not guilty plea is entered, the case will be scheduled for a later date for either a motions calendar, a bench trial, or a jury trial. Witnesses are not typically subpoenaed for arraignments. A defendant can choose to have one of two types of trials, a bench trial or a jury trial. A bench trial is one where a judge sits as the trier of fact and will determine whether or not the defendant is guilty beyond a reasonable doubt of the crime of which he or she is accused. No jury is involved in a bench trial. A jury trial is a trial whereby a jury is selected to act as the trier of fact and will determine whether or not the defendant is guilty of the crime. In misdemeanor cases, a jury of six people will be selected, and in felony cases the jury consists of twelve people. In order to reach a verdict, a jury must reach a unanimous decision as to whether to convict or acquit the defendant of the charges. If a unanimous decision cannot be reached by the jury after a reasonable period of deliberation, the judge may declare a mistrial. In that event, the case may be retried by the prosecution at a later date with a different jury. Regardless of the type of trial a defendant may select, the trial procedure is essentially the same. The trial begins with opening statements made by both the prosecution and defense. The purpose of the opening statement is to give the trier of fact an idea about what each side expects the evidence to show. The opening statement is not considered evidence, but merely a preview of what the trial will entail. Once opening statements are completed, the prosecution begins presenting its evidence. Evidence may consist of direct testimony from a witness, documentary evidence, or circumstantial evidence. The defense is entitled to cross-examine each witness. Once the prosecution has rested, or completed presenting its evidence, the defense may then put up whatever evidence it wishes to present. A defendant is never required to testify. The prosecution is allowed to cross-examine each defense witness. Once both sides have completed presenting evidence, closing arguments can begin. Closing arguments are statements made by the prosecution and defense that are designed to persuade the trier of fact that their case is the stronger of the two. The arguments cannot be considered as evidence, but merely as a summing up of the evidence just presented. Once the closing arguments are presented, it is up to the trier of fact to determine whether or not the defendant is guilty of the crime charged beyond a reasonable doubt. If a defendant is acquitted after a trial, he or she may never be tried for that same crime again. If a defendant is found guilty, or convicted, of the crime alleged, it then becomes the judge's duty to impose a sentence. In misdemeanor cases, a judge has the discretion to impose a sentence of up to twelve months in jail and a $1000.00 fine. In felony cases, the length of time a person may be sentenced to prison is determined by the statute pertaining to the particular crime of which a person has been convicted. In most cases, the judge has a wide variety of sentencing options from which to choose, including incarceration, probation in lieu of incarceration, community service, fines, boot camps, special programs, etc. In certain cases, the judge is bound by the legislature to impose a mandatory minimum sentence. This is true in some misdemeanor cases, such as driving under the influence of alcohol or drugs, or driving on a suspended license. It is also the case for the most serious felonies. The legislature has determined that there are certain offenses, namely murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery, whereby the mandatory minimum sentence that the judge must impose is ten years incarceration. In these cases, the defendant would not be eligible for parole during that ten year time frame. In other cases where the defendant is sentenced to some incarceration, that defendant's eligibility for parole will be determined by the Department of Corrections. Once a person has been convicted after a trial, an appeal may be filed within thirty days of the sentencing date. Once thirty days have passed, the Court of Appeals will not generally allow the defendant to appeal their case to the higher court. If an appeal is timely filed, the case will then be sent to the Court of Appeals for review. The Court of Appeals will not hold a new trial on the case, but merely review the transcript of the trial to determine whether any mistakes of law were made during that trial that would necessitate a new trial being granted to the defendant. If the Court of Appeals determines that new trial is necessary, it would remand the case back to the trial judge that heard the original trial with instructions for a new trial to be granted. If the Court of Appeals determines that there was no reversible error in the trial, then the judgment of the trial court will be affirmed and the conviction will stand. The defendant then has the option of applying to the Supreme Court for review. While every person has the right to represent himself in a criminal proceeding, it is highly recommended that you consult an attorney if you ever find yourself charged with a criminal offense. Attorneys are trained to recognize any defenses to the charge, as well as to identify weaknesses in the state's case. If you decide that you would like to go to trial, an attorney is invaluable in preparing the case as well as presenting it to the trier of fact. There are many facets of criminal law that can only be learned through years of training and experience, and something as precious as your freedom is not something you want to gamble on by believing this is something you can manage without outside help. The above contains general information and is not tailored to a specific legal problem; it should not therefore, be considered legal advice. Do not try to use this information without consulting an attorney to learn how the law affects your unique circumstances. |
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| Attorneys At Law Since 1974 |
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| Copyright ©2008 by Deming, Parker, Hoffman, Campbell & Daly, L.L.C. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include the above copyright notice. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. |
