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The Criminal Case Process

This summary is a portrayal of the general criminal justice process.  Every case is different, and there may be slight deviations from this process depending on the processes implemented in the county and court in which you are charged.  Just as no two criminal cases are the same, no two courts are the same.  It is important to consult with an attorney about the process that you will be navigating in the criminal justice system.

So you have been charged with a crime.  The criminal justice system in the United States is unique in that it guarantees defendants certain rights.  The Indiana Constitution and case law go farther and guarantee the right to be convicted only by the presentation of evidence showing such guilt beyond a reasonable doubt, and the defendant is presumed innocent until he is convicted.  Among the rights guaranteed in Indiana courts are:

–          the right to retain counsel.  There are certain deadlines for filing motions and raising defenses and failure to retain counsel to make those deadlines could result in the legal issues and defenses being waived.  Further, if a defendant is indigent, he has the right to have counsel assigned to represent him at little or no expense.

–          the right to a speedy and public trial by court or jury and to make the State of Indiana prove all of the essential elements of the crimes charged against me beyond a reasonable doubt.

–          the right to confront and cross examine witnesses, to call witnesses to testify in presentation of the defense, including subpoena power, to testify in one’s own defense, and to remain silent without any implication of guilt arising out of the decision not to testify.

–          if convicted at a trial, the right to appeal the judgment of conviction to the Indiana Court of Appeals and higher.

–          the right to bail (except in murder cases).

You have these rights.  EXERCISE THEM.  Do not speak to law enforcement officers without first speaking with and retaining an attorney.  Don’t post on Facebook or other social media.  Don’t discuss the case with family or friends.  Hire an attorney.  Depending on the type of case, other pending cases, and your anticipated outcome, it may not be beneficial to post bond right away.

You were either arrested or received a summons to appear in court.  The first step is for the State of Indiana to file formal criminal charges against you, which is normally done by an Information with an attached Probable Cause Affidavit.  The State can also bring charges by convening a grand jury to decide whether an indictment is appropriate.  Either way, the next step is for the case to be brought before a judge or magistrate for reviewing the finding of probable cause justifying an arrest, the issuance of a warrant (if appropriate), and the setting of bail.  If you are in jail, you are often brought to court for this hearing or appear by video.

The next step, which often coincides with the finding of probable cause, is the initial hearing.  This is a time when defendants are advised of their constitutional rights and are advised of certain dates and times for hearings and deadlines for filing certain papers.  The court sets one or more pre-trial hearings, a trial date, and an omnibus date.  The other issues customarily determined at the initial hearing include a review of bail, discussion of what the defendant intends to do about hiring an attorney, and the issuance of a discovery order.  A preliminary plea of not guilty will also be entered on your behalf at the hearing, and you will be advised of the charges against you and the potential penalties.

The omnibus date is important, as it is the date the court uses to determine when certain defenses or charges must be filed.  Certain defenses, such as mental disease or defect and alibi, must be filed a certain number of dates before the omnibus date.  The State also has certain obligations with regard to filing.  In misdemeanor cases, the omnibus date is the trial date.  In felony cases, the omnibus date is a different date, and may or may not coincide with a pre-trial conference.  Because of these important deadlines, it is IMPERATIVE that you seek legal counsel from a licensed attorney prior to or as soon as possible after the initial hearing.

Pre-trial conferences are hearings held before the trial to help resolve pertinent pre-trial motions and issues, and to help the court and parties plan accordingly for trial.  The judge will ask the attorneys involved for a status update on the case to find out if it is proceeding or is ready for trial.  This is necessary because the court and State of Indiana must ensure that a defendant is tried within a certain timeline.

Magnifying glass

Attorneys then conduct discovery, including in some cases the taking of depositions of witnesses pertinent to the case.  Other cases may be much more straight forward and may not require the taking of depositions.  Some cases only require the review of written discovery records.  Occasionally, cases involve complex evaluations and may require the retaining of services from an expert witness.  Your attorney will be able to explain the discovery steps that will be required in your case.

During the course of investigating your case, your attorney may evaluate your case and discover that evidence against you may not have been obtained legally.  If this happens, there may be need to file a motion to suppress evidence.  It is the State’s burden to prove that the evidence was gathered lawfully, whether it be statements or physical evidence.  Once a motion is filed, a hearing will be set and the court will thereafter issue a ruling on the evidence and arguments presented by the attorneys.  The judge’s decision on a motion to suppress is not a final decision, and therefore cannot be appealed except by permission of the trial court and acceptance of the question by the Court of Appeals.  If it is not appealed directly, the issue should be raised again at trial and can be reviewed by the Court of Appeals on that basis.

After the initial exchanges of discovery, which includes all of the papers and lists of witnesses expected to be called at trial, plea negotiations begin.  These discussions include what charges will be admitted, if any, and what sentences will be imposed.  This process IS NOT like negotiating for a used car.  There is not guarantee of the number of plea offers you will get, nor is there any guarantee that you will even be offered a plea.  The State has no obligation to negotiate, but the United States Supreme Court recently depicted the negotiation process as crucial to the criminal justice process.  A plea agreement is not something to be entered lightly, but after careful consideration with legal advice from your attorney, you may determine that entering a plea agreement is in your best interests.  If you elect to enter into a plea agreement with the State, it will be reduced to a written agreement and signed by you, your attorney, and the prosecutor assigned to your case.  The judge will then set a hearing and decide whether to accept the plea.  He or she will review your rights with you, ensure that you understand what rights you give up by pleading guilty, and ask you what happened that you are guilty of the crime to which you are offering to plead guilty (called a “factual basis”).  The judge will then decide whether to accept the plea, reject it, or take it under advisement pending sentencing hearing.  If the court accepts the plea, it is bound by the written agreement and must sentence you according to its terms.  However, if the court rejects the plea you are not bound by your plea, the factual basis will be stricken and cannot be used against you, and the court will reinstate your previous plea of not guilty.   You may either be sentenced at the time of entering a guilty plea, or you may be sentenced on another date after the court has the probation department meet with you and prepare a pre-sentence investigation report.  The court will hear some evidence at the sentencing hearing and will also consider attorney arguments in imposing sentence.  Depending on the offense and the anticipated sentence, you may begin serving your sentence immediately or at a later date.

If a defendant refuses to plead guilty, either open to the court or pursuant to a plea agreement, then the court will hold a trial.  Misdemeanors are set for a bench trial (or trial to the judge) unless a jury trial is timely requested.  Felonies are set for a jury trial unless the parties have agreed in writing to a trial to the judge.  If the case is to a jury, then the trial process normally starts with resolving preliminary instructions to the jury, selecting a jury panel (called voir dire), and then reading instructions.  All trials then proceed to opening statements by the attorneys to present a story of what the expected evidence will be, the State’s presentation of evidence, the Defense’s presentation, and rebuttal by the State and Defense if applicable.  Closing arguments by the attorneys are then made, and juries are instructed of the law and standards that the State must prove.  The judge or jury, depending on the type of trial, then deliberate and enter a verdict on the charges.  There may be other motions throughout the process, such as a motion for directed verdict, if the State has not proven all of its burdens sufficient to render a verdict of guilty.  Once a verdict is entered, the Defendant is either released, or a conviction is entered and a sentencing hearing is scheduled.

GavelTrials are very complex and are bound by the Rules of Evidence, with which attorneys who regularly practice in trial courts are familiar.  The trial is not normally like what you see on television, and there are several procedures that parties must go through in the course of presenting evidence and exhibits.  Attorney statements are not themselves evidence, but rather summaries used to help tie the evidence together for the trier of fact to decide on a verdict.  In Indiana, juries are the triers of law as well, meaning that they decide what the law is.

If a defendant has a trial and doesn’t like the verdict, or pleads guilty without a plea agreement and receives an excessively harsh sentence, he or she may appeal their conviction and/or sentence as a matter of right to the Indiana Court of Appeals.  Capital cases and other select cases are appealed directly to the Indiana Supreme Court for review.  Cases on appeal are not reweighed, but the courts have standards that they use to review the records of the trials and sentencing hearings.  The courts review the written record, the transcripts of hearings, and exhibits filed with the court and admitted as evidence in deciding whether the trial process was conducted properly.  On appeal to the Indiana Court of Appeals, a panel of three judges will be appointed to review the case.  On appeal to the Indiana Supreme Court, the entire court hears the case.  There may or may not be oral arguments, but no new evidence is admitted when the case is on appeal.  Once an opinion is entered, the appellate courts have very specific details for seeking further review.  Depending on the issues, a defendant may be able to ask higher courts, including the United States Supreme Court, to review the case further.  If the appellate opinion is in favor of the defendant, then the trial may be vacated, and the case may or may not be retried depending on the reasons for overturning the conviction.  Because appeals are based upon writings, the process is time consuming and may take more than a year.

Criminal cases do not end even when an appeal is completed.  If the appeal is not successful, the defendant may seek post-conviction relief in state courts based upon the discovery of new errors or problems with the trial that were not previously resolved by the appeal process.  If the problems with the conviction rest in federal law, the defendant may be able to seek relief in federal court by initiating an action for habeas corpus.  These are very specific proceedings and require experienced legal counsel to prepare the appropriate documents and arguments.

As you can imagine, this road is not one to be travelled without a guide and counselor.  Retaining an attorney is imperative to obtaining the best possible outcome for your case.  The attorneys at Dillon Legal Group, P.C. actively practice in criminal defense and are interested in protecting your rights.  We offer competitive rates and our best counsel in hopes of representing you and your best interests.