What to expect if you are arrested...

Preliminary Hearing

At the preliminary hearing the judge determines whether sufficient evidence exists to send the case to the upper court for trial. The judge reviews whether there is probable cause to believe a crime was committed; and whether there is probable cause to believe the person before the court is the one who committed the crime. Rarely does a judge overturn the prosecution and dismiss the case. The length of a preliminary hearing varies by case. It may last three hours or it may last three questions.

Six things to expect at the preliminary hearing:

Preliminary hearings are shorter than trials.
The defendant has the right to not have a preliminary hearing by “waiving” the case to the Grand Jury.
The goal of a preliminary hearing is to screen the prosecution's case.
The prosecution is only required to show "probable cause" at the preliminary hearing.
The preliminary hearing will be conducted in front of a judge. No jury will be present.
Although the defendant may not be granted a bond before trial, that does not mean the defendant is guilty.
Neither the prosecution or defense will present their whole case at the preliminary hearing; They want to save their case strategies for the trial.
Cross examination of police officers or witnesses may occur.
The judge has the right to increase the defendant’s bond at the preliminary hearing, depending on the evidence presented.

What is Grand Jury?

Grand Jury is a hearing where the prosecution presents its evidence to members of the Grand Jury to determine whether there is enough evidence for the case to go to Circuit Court. The defense is not present and has no right to cross-examine the evidence. Therefore, the grand jury only hears one side of the case.

What Is An Arraignment?

An arraignment is the process by which the defendant is read specific charges against him.

What Will Happen At The Arraignment And What Must The Defendant Do?

At the arraignment the defendant will appear before a judge. The defendant may appear alone, or he may bring legal counsel. An arraignment is the time where the judge will ask if the person appearing is the person identified in the charges. In addition, the judge will ask whether the defendant will plead not guilty. It is highly unusual that a defendant would enter a guilty plea at the arraignment. At an arraignment:

The defendant usually will be provided with a written allegation from the prosecutor.
The defendant will be asked to acknowledge his identity.
The defendant should have their attorney present.
The defendant may be told his possible punishment. The possible punishment is not a reflection on the case or the judge’s view of the case or the defendant.
Bail is established. The defendant has a right to argue for a bail reduction.
Discovery is usually presented to the defense attorney. Discovery usually consists of a police report and a complaint. This varies by state. Some states do not provide discovery until after the preliminary hearing or indictment.
If the defendant pleads guilty at the arraignment, the judge may sentence the defendant at that time.

Five things the defendant should expect from his criminal defense attorney:

The defense attorney must ethically and actively defend his client.
The defense attorney must present all options to his client with recommendations and professional opinions.
The defense attorney must prepare his client completely for each step in the legal process.
The defense attorney must review all possible defense scenarios and interview all witnesses and review evidence in support of the client’s case.
The defense attorney must develop a theme to the defense. The theme is composed of a powerful defense strategy and a course of action to present reasonable doubt to a jury or otherwise minimize punishment if a guilty plea is entered.

Differences Between Misdemeanors and Felonies

Consequences for misdemeanors and felony convictions are entirely different. A defendant must understand which crime he has been charged with in order to understand what will happen if convicted.

Generally, a misdemeanor crime is punishable by up to one year in county jail. Misdemeanor trials are held in the state's lower court, sometimes referred to as Municipal Court. (Names for these courts vary from state-to-state) Examples of misdemeanor crimes include drunk driving, disorderly conduct or theft of property 3.

A felony crime is punishable by one year or more in state prison or a penitentiary. Many felony charges result in mandatory prison time, if a person is found guilty of the charges. Sample felony crimes include murder, rape, or armed robbery.

Pre-Trial Conference

This involves a meeting between prosecution and defense. Topics discussed include plea bargain opportunities, strengths and weaknesses of the prosecution's case, pretrial motions and intangible factors of the case, such as the defendant's character and past history.

Trial

A jury trial is the fact-finding phase of the case. It is the in-court examination and resolution of a criminal case. At the trial a decision will be reached as to the innocence or guilt of the defendant. Unlike a plea-bargained settlement which completes the case prior to trial, a trial introduces risk for both the prosecution and defense. Neither side knows which side will win. The trial begins with the prosecution's opening statement. The defense attorney may also present an opening statement at this time. The prosecution presents his case to support the charges and then rests. The defense presents his case to refute the charges and then rests. Closing arguments by both the prosecution and defense conclude the presentation part of the trial. The jury then deliberates innocence and guilt.

In a trial, expect the following to occur:

Jury selection
Opening statements are presented by both the prosecution and the defense
The prosecution presents their case
The defendant cross examines
The defense presents their case
The prosecution cross examines
Closing arguments are presented by both the prosecution and the defense
The prosecution, defense attorney and judge decide on specific instructions to the jury
The judge instructs the jury on rules
The jury deliberates
The jury submits their verdict

Sentencing

The judge determines the length and type of punishment at a sentencing hearing. Witnesses are generally allowed to speak, requesting either a lighter or stiffer sentence. The defendant may make a statement to the court. In addition, in some jurisdictions the court may ask for a report from the probation department prior to sentencing the defendant.

7 Things to Consider Regarding Sentencing:

The judge almost always determines punishment.
The judge may be required to follow specific sentencing guidelines.
Factors such as no criminal history, a good public record, and professional or personal responsibilities may persuade the judge to provide a lighter sentence.
A previous criminal record, use of a dangerous weapon, degree of injury or financial loss, and the type of conviction may persuade the judge to provide a harsher sentence.
Judges almost always give repeat offenders stiffer sentences.
If the defendant is not planning on appealing the case, this may be an appropriate time to acknowledge responsibility in order to convince the judge to give a more lenient sentence.

Circumstances That Can Adversely Affect Sentencing:

1) Previous Criminal Record. A defendant's past record is a large consideration when determining an alternative or lesser sentence within the lower end of the sentencing guidelines. A previous record can also affect the level of security of the facility that the defendant will be sent to as a result of sentencing. Most correctional facilities use a point system unfavorable to repeat offenders costing them time deducted from their sentences. On the contrary, first time offenders are frequently sent to camps or community centers instead of penitentiaries.

2) Enhancements. Most states carry statutes which call for stiffer penalties if a defendant's crime involves the use of a dangerous or deadly weapon, serious or permanent bodily injury, or crimes against youth or the elderly. Enhancements generally increase the sentencing penalties. In some states, enhancements are not a separate charge and are considered part of the primary offense such as armed robbery.

Plea Bargaining

95% of all cases end in a plea-bargain. Plea-bargaining is an excellent way to avoid a potential stiff conviction in favor of an agreed upon lighter conviction. For instance, in a drug possession case, a judge may be convinced to dismiss the charges in return for the defendant's successful completion of a rehabilitation program. Some judges and prosecutors are amenable to plea-bargaining, whereas others are not.

Five things to ponder when considering a plea bargain:

A judge-approved guilty plea bargain may result in a criminal conviction. The conviction will show up as a criminal record.
The defendant may lose rights and privileges as if the defendant were convicted after trial.
A guilty plea serves as an admission of guilt.
A plea bargain may result in a lighter sentence and completes the matter quickly.

How to plea-bargain a good deal:

The defense must show responsibility for the crime is minimal.
The defense must show the impact of the crime elicited little damage.
The defense must explain mitigating circumstances that led to the crime.
The defense must establish weaknesses in the prosecutions case, such as lack of evidence, lack of witnesses or factual inconsistencies.
The defense must establish good character on the part of the defendant. The crime was a departure from normal conduct.
The prosecution and defense must mutually desire a reasonable settlement.
The impact on the defendant’s family or dependents would be a hardship.

Understanding Bail

Bail is a method to get the defendant home as he awaits going to trial. It is not a period of time to argue the merits of the case. Bail is an amount of money used by the court to ensure the defendant comes back to court when required to do so. There are typically two factors the judge considers before setting bail. Any bail argument by the defense attorney must address both parts:

Is the defendant a danger to the community?
What is the likelihood the defendant will flee?
How long has the defendant been a member of the community?
What is the defendant’s prior criminal history?
Was violence associated with this crime?

In order to get bail reduced the defense attorney should do the following:

Demonstrate the potential crime is not one that the defendant would do again
Demonstrate the defendant is not a danger to the community
Demonstrate the defendant presents no likelihood to flee. The defense attorney can present this in various ways: - Character references - Community support - Stable employment history - Memberships in religious or civic organizations - Surrendering the defendant's passport - Agree to electronic monitoring

The court can present several bail release options. These may include:

Cash Bail. The defendant is responsible for paying the entire amount of bail to be released. The defendant will receive his bail back at the completion of all court appearances.
Release On Own Recognizance or signature bond. If the judge is convinced the defendant is not a risk, he may release the defendant on his own recognizance.
Surety Bond. The bail agent guarantees to the court that they are responsible for the bond if the defendant fails to appear.
Property Bond. The court records a lien on the property of the defendant to secure the bail amount.

Why do most defendants not testify?

As a general rule, defense attorneys do not allow their clients to testify except in certain circumstances. The prosecution has the burden of proof. The only responsibility of the defense is to examine their case and point out the reasonable doubt to the jury.

Guster Law Firm is an aggressive law firm in Birmingham, Alabama. Eric Guster of Guster Law Firm represents clients in Birmingham, Bessemer, Alabaster, Pelham, Shelby County, Mountain Brook, Homewood, Pelham, Trussville, Center Point, Adamsville, Irondale, Huntsville, Madison County, Sumter County, and St. Clair County.

We work in all courts throughout the State of Alabama. We concentrate our criminal practice in Jefferson County but we travel to other counties to represent people in need. We regularly appear before the following judges: Judge Alfred Bahakel, Judge Gloria Bahakel, Judge William Cole, Judge Eric Fancher, Judge Clyde Jones, Judge Davis Lawley, Judge David Lichtenstein, Judge Tommy Nail, Judge Mac Parsons, Judge Teresa Petelos, Judge Laura Petro, Judge Teresa Pulliam, Judge Katrina Ross, Judge Virginia Vinson, and Judge Shelly Watkins

The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law. See Terms of Use.