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Criminal Procedure

Constitutional rights
• - Once you have been arrested, there are certain rights that you need to remember, including: right to an attorney, right to confront witnesses, right to testify in your own behalf, right to remain silent, right to fair and speedy trial, right to subpoena witnesses to testify, right to a trial by jury, right to be presumed innocent.

Arraignment
• - This is the step in criminal procedure that takes place after arrest and booking. Arraignment is a very brief hearing in which you will be read the charges against you. This only takes place if the prosecutor decides to file charges. Other things that occur at arraignment include setting of bail, entering a plea, and being provided a written allegation by the prosecutor.

Pre-Trial Conference
• - This is where the prosecution and defense meet and discuss things such as strengths and weaknesses of the prosecution’s case, motions, and defenses (including intangibles such as past history and character). This is usually where plea bargains are discussed.

Negotiation of Plea
• - A plea bargain is best described as an opportunity for the defendant to avoid one possible conviction by accepting another lighter conviction. For example, a prosecutor may offer a lighter sentence in exchange for a plea of guilty. Another example is the dropping of charges after a term of probation. This is a way to avoid the expense of a trial. Most criminal cases end this way as most judges and prosecutors are agreeable to avoiding trial. There are a few things that must be considered in a plea bargain scenario including:
  1. a guilty or no contest plea can result in a criminal conviction.
  2. Loss of rights and privileges that exist when convicted at trial.
  3. A plea bargain can result in a lighter sentence and expedite your case to a good conclusion.

Trial
• - Although this is not the impression that the media likes to give, very few cases actually go to trial. This is the phase of the process in which the facts of the case are established in front of a jury and guilt or innocence is determined. This is a risky endeavor for all involved due to the fact that it is impossible to determine the outcome of the case (i.e. who will win or lose)

Sentencing
• - Depending on which jurisdiction the court is in, the judge or the jury determines the sentence. Witnesses can be called that can request a lighter sentence if testifying for the defense, or a stiffer sentence if testifying for the prosecution. The defendant may want to make a statement on his or her own behalf. The things to keep in the back of your mind in the realm of sentencing include:
  1. The Eighth Amendment prohibits cruel and unusual punishment (i.e. one typically does not get a death sentence for drunk driving).
  2. If this is your first offense (i.e. no criminal history, good reputation, and significant professional/personal responsibilities, a judge/jury may provide a lighter sentence.
  3. Stiffer sentences are usually given to repeat offenders.
  4. Accepting responsibility for your actions may work in your favor at sentencing time.

Appeal
• - Once a sentence is given, the next step is to appeal the conviction. At this stage, your attorney will file what is called an appellate brief to the nearest appellate court after notice to appeal has been given. The appellate court decides which cases it wants and does not want to hear. If the appellate court decides that it wants to hear your case, oral arguments will take place in which both sides will give their reasoning as to why the result should or should not be overturned. The appellate court will only consider issues from the record of the lower court, so it is imperative that you have an experienced attorney at the trial level that can preserve issues that can be appealed later. If mistakes have been made in the lower court during the course of your trial, an appellate court can dismiss the case altogether, or send the case back to the lower court for a retrial. While most think of the United States Supreme Court when they hear the term appellate court, most appeals start at the state level and it takes some time for an appeal to find its way through the web of state and federal appellate courts before making its way to the Supreme Court.

Definitions
• • Mens Rea
    – Mens Rea means, in a nutshell, premeditation. One will typically hear the term Mens Rea when someone is trying to decide if someone committed first degree murder. In the realm of murder, generally, some kind of premeditation or malice aforethought is required. However, in some states (such as Utah) premeditation and malice aforethought have nothing to do with the determination of whether or not a murder was committed, rather, the determination is whether or not the killing was intentional (among other considerations).
  • Murder
    – The intentional and unlawful killing of another human being. Penalties for murder vary by state; however, one can face life imprisonment (with or without parole) or even the death penalty for the commission of such an offense. Defenses for murder may include: innocence, insufficient evidence, insanity, and Battered Woman Syndrome.
  • Felony Murder
    – This is a murder that is committed during the course of the commission of a felony. For example, killing someone during the commission of a bank robbery would constitute felony murder. Most state codes have a separate classification of felony murder (Utah, for example, uses the term felony murder and has a list of crimes that constitute it (if a death results during the commission of said felony) such as child abuse, escape robbery, rape etc). One can commit a felony murder during the flight (moving away) from the scene of the crime. If not, such crimes are placed in the category of aggravated murder. Typically, one will hear the term felony murder in a death penalty case when aggravating circumstances surrounding the crime must be shown.
  • Rape
    – The act of unlawful sexual intercourse committed by one person against another against the will of the victim, whether the victim is conscious or not. This type of unlawful sex act can range from statutory rape (sexual intercourse with an individual under a certain age (varies by state) which is a strict liability crime – meaning there is no defense) to rape committed by means of violence. Penalties can include: long prison sentence, mandatory sex offender registry, probation, court ordered rehabilitation, loss of the right to vote. Defenses include: proving consent, factual innocence, insufficient evidence.
  • Molestation
    – Lewd and lascivious acts committed by one person upon another with the intent to arouse, appeal to, or gratify lusts, passions, or sexual desires of that other person. We most commonly hear about these types of acts being committed on children (who may never be considered willing partners), however, adults can be victims of molestation as well. Sentences include imprisonment, sex offender registration, loss of the right to vote, prohibition from being near minors, and mandatory rehabilitation.
  • Theft
    – The taking of the property, that is of some value, of another. When this is done by force through the use of a weapon, it is called armed robbery. The perpetrator must intend to permanently deprive possession of the owner of the property as well as carrying the property through physical possession and control for some period of time. Consequences include: long prison sentences, difficulty gaining employment because of conviction, and hefty fines. Defenses include mistaken identity and factual innocence.
  • Fraud
    – The making of false statements made with the specific to procure property of another. This can include personal property, cash, or even obtaining a loan or credit card. Consequences can include: imprisonment, probation, difficulty finding employment, payment of restitution, and court ordered counseling. Defenses include insufficient evidence, factual innocence, proving the true owner, and showing that statements were not meant to be relied upon.
  • Embezzlement
    – The exploitation of a relationship, such as employer/employee, with the intent of procuring property or money. Consequences include: imprisonment, probation, difficulty seeking employment, payment of restitution, and court ordered counseling. Defenses include: Insufficient evidence, factual innocence, proof of the non existence of a relationship of trust, proving that actions were consistent with the relationship dynamic.
  • Extortion/Blackmail
    – The obtaining of property through consent that has been induced by threats of harm by the perpetrator. Consequences include: imprisonment, probation, difficulty finding work, payment of restitution, and fines above and beyond restitution. Defenses include: insufficient evidence, factual innocence (proving consent was not induced by fear of harm), and proving that the accused was the true owner of the property.
  • Vehicular Manslaughter
    – The unintentional, but unlawful, killing of another person while in operation of an automobile. Consequences include: imprisonment, fines, paying more for insurance, and driver license revocation. Defenses include: factual innocence, proving that one was not negligent, and proving lack of fault.
  • Domestic Violence
    – The willful infliction of injury on another co-habitant. Consequences include: loss of custody/visitation rights, imprisonment, court ordered counseling, punitive settlements in family court, and the loss of right to own weapons. Defenses include: self defense, factual innocence, and insufficient evidence.
  • Drunk Driving
    – Operating a motor vehicle while under the influence of alcohol, narcotics, or medication (the legal blood alcohol level is .08 in all fifty states). Keep in mind that in some jurisdictions, the vehicle does not have to be moving in order to obtain a conviction. In Utah for example, the standard of analysis is whether or not the intoxicated person was in control of vehicle (i.e. if the keys are in the ignition and the lights are on, but the accused is passed out in the vehicle and the vehicle is not moving, he or she can still be convicted of driving under the influence). On a related note, open containers of alcohol are not allowed in any kind of motor vehicle in any state (this is called “driving with an open container”, and is a crime, even if a person is not intoxicated). Consequences include: imprisonment, revocation of driver’s license, higher insurance rates, probation, and ignition device installation. Defenses include improper law enforcement procedure and factual innocence.
  • Assault and Battery
    – Under personal injury law, these are two separate offenses. In the realm of criminal, they are combined into one offense. Assault and battery occurs when one person threatens immediate harm to another person. During the course of the incident, it must appear that the perpetrator is capable of committing harm and the victim’s fear must be well founded (i.e. someone is pointing a gun at you and saying “give me your money!”). Consequences include: imprisonment, probation, court ordered counseling, and loss of right to possess weapons. Defenses include: factual innocence, mistaken identity, unfounded fear, and self defense.
  • Drug offenses
    – A series of crimes in which one is in possession of, using, or selling, a controlled substance (marijuana, cocaine etc.). Consequences include: imprisonment, court ordered drug testing, court ordered rehabilitation, revocation of driver’s license, and search and seizure of one’s home or vehicle. Defenses include: improper law enforcement procedure, factual innocence, and possessing a valid prescription.