Tuesday, November 17, 2009

What you are charged with

When the prosecution brings a case, they charge the defendant with a crime. The prosecution can charge the defendant with anything they want. The defendant could be arrested for drunk driving and the prosecution could charge them with murder one, even though no one died or even got hurt from the drunk driving. Granted the above example is extreme and highly unlikely to ever happen.

However, what is more likely is that the prosecution will charge the defendant with a number of different crimes. The prosecution does this for a number of reasons. One, is that without all the evidence that would be determined during a full investigation leading up to the trial the prosecution does not know what crimes could be proven, so the prosecutor includes a laundry list. Two, the prosecution is attempting to scare the defendant into a plea deal by showing them how much they could be charged with. The later is in reality the stronger reason for a prosecutor to charge a large number of crimes as during the negotiations certain charged crimes will likely be dropped and in the end the defendant will hopefully only serve a sentence for the actual crime he or she committed, no the laundry list put forward by the prosecution.

A final word regarding charged crimes, while a person can be charged with any crime after being arrested the prosecution will generally only charge the defendant with the crimes which he or she believes can be proven at trial.

Thursday, November 12, 2009

Parties to a Criminal Case

In a criminal case there are a number parties. There is the prosecution, the defense, the judge, jury, and the victims. The judge is ideally the neutral third party who makes sure that all of the parties are acting within the rules and not violating anyone's particular rights. The judge is the individual that makes decisions regarding legal questions (for example a violation of the fourth amendment or if the proper Miranda rights were read). The jury is the group that determines the questions of facts. For example, did the defendant have the requisite mental state of mind needed to be guilty of the charged crime.

The prosecution is the party who prosecutes the accused. The prosecution's client is society and the state. The prosecution's duty is to find justice and if the case goes to trial to prove beyond a reasonable doubt that the defendant is guilty of the crime charged.

The defenses does not technically have to do anything as all the burden is on the prosecution; however, it would be very dangerous to not put forth a defense. The defense will ideally poke holes in the prosecutions case and create doubt in the minds of the jury. By doing so the jury cannot find the defendant guilty beyond a reasonable doubt.

Lastly, the victims also have a limited amount of say in the trial (generally in the sentencing and restitution phase of the trial). The victim does not get to control the trial or tell the judge and/or prosecution what to do. The victims rights are largely controlled by Marcy's law.

Thursday, November 5, 2009

Appeals

After the trial and the sentencing there is one more possible step. The defendant can appeal the outcome of the trial. There may be various grounds on which a defendant can appeal the verdict. Some possible appeals include ineffective assistance of counsel, jury misconduct, improper evidence or possibly habeas corpus.

The possible appeals depends on the type of trial you had and what happened during the trial. An appeal can be a very long and tedious process. Once again this depends on the circumstances of the cases. Generally it is very hard to win an appeal.

Lastly, a defendant can appeal the verdict of the case while the prosecution can only appeal in very limited circumstances but in general the prosecution cannot appeal.

When a defendant appeals the verdict the general process is the appeal goes up to the State Court of Appeals, then to the State Supreme Court. If there is a federal issue the case could go to the Federal Court of Appeals and then to the U.S. Supreme Court. Given the number of appeals that are possible this process can be very lengthy, it can drag out for a number of years.

Tuesday, November 3, 2009

Sentencing

Sentencing occurs after the trial is complete. Depending on the type of trial and how it was conducted there may be a trial to determine the sentence. This occurs in a bifurcated trial (a trial with two parts). In the sentencing part of a bifurcated trial the guilt is already determined. The trial is to determine the sentencing aspect of the case.

Sentencing can be surprisingly complex. If a person is guilty of committing a crime for the first time there is one of three levels (amount of time to serve) that can be applied, a minimum, the middle, and high. Generally the court will start with the middle and move towards the minimum or high end depending on the mitigating or aggravating factors of the case.

For example, lets assume you are charged with a crime that has 2, 4, 6 as the sentencing guidelines. This means the middle amount is 4 years - this is where the judge will start for purposes of sentencing. Lets assume there are a large number of mitigating factors and no aggravating factors, in this case the judge is likely to impose the 2 years as the sentence. Now lets assume there are a lot of aggravating factors but no mitigating factors, in that case the judge will likely impose a sentence of 6 years.

Now, things get much more complicated if you have prior strikes or are in a gang. Each of these can have a huge impact on the disposition of you case. These are generally called enhancements and are statutorily required. This means a simple 2 year sentence can end up being 8,10, or 20 years depending on what enhancements you may or may not have. Obviously the more enhancements you have the more time you are looking at serving.

In some cases even if you are found guilty of the underlying crime the judge may impose a stay on your sentence, this means, even though you were found guilty of the crime you will not be serving time unless you violate your parole. Once you violate your parole the sentence will instantly come into effect and you will have to serve your full sentence. A final note is time serve. If you are sentenced to a relatively small amount of time in jail, and you have been in custody, you may be able to leave shortly after you trial (if the trial took a long time) as you have already served a certain amount of time in jail awaiting trial