Following an arrest for a serious crime, the police agency involved in the arrest must contact the local States Attorney’s Offices. Police agencies do not have the inherent power to automatically charge someone with a felony. That decision rests solely within the power of the States Attorney’s Office. The Felony Review division will be open 24 hours a day, 365 days a year. It is within the sound discretion of the State Attorney to determine whether or not the felony charges will be filed against the accused. In some instances the State Attorney will decide not to charge the individual with a felony, in that event, the arresting agency may still bring misdemeanor charges against the defendant.
Constitutional safeguards guarantee that the rights of the accused will afford that individual to be brought before a judge within 72 hours following the arrest. At that time a bond hearing will be held to determine the amount of the bond that needs to be posted. The reasoning behind the amount of bond to be posted is to guarantee defendant’s subsequent appearances in court. Types of things the judge considers in order to determine the amount of bond are, whether or not the defendant is a flight risk, has ties to community, (i.e. whether the accused has family, job, owns property, etc.) the nature and seriousness of crime the defendant is charged with and whether or not the individual is likely to commit other criminal acts while out of custody. If the judge allows for a bond to be set, the family of the defendant only needs to post 10% of the total bond amount.
In most cases the next step of the process involves a Preliminary Hearing. The main purpose for a Preliminary Hearing is to determine whether or not probable cause exists for the case to continue further. During the hearing, the State Attorney will present witnesses who will testify to the events leading up to the arrest. The defense attorney will have an opportunity to cross-examine those witnesses and make sure that their story is consistent with the facts at hand. The judge will look at all factors presented at the preliminary hearing, and determine whether enough evidence exists for the case to move forward. In many cases the judge may find that no probable cause exists and dismiss the charges all together. (This does not necessarily mean the case is over).
Ninety percent of felony cases are superseded by Indictment. This is where the State Attorney will have 18 individual members of the community, known as the Grand Jury, convene behind close doors and determine whether probable cause exists to have felony charges brought against the individual. In many instances the State Attorney will bring indictment charges against individual in the cases where charges were originally dismissed at the Preliminary Hearing. If the Grand Jury makes a finding of probable cause and arrest warrant will generally be issued and the case will proceed to the next level.
During this stage of the process the defendant is formally admonished of the charges against him and enters a plea of guilty or not guilty. For the most part, the defense attorney will waive formal reading, (ask the judge not to recite verbatim all the charges brought against the defendant). During the arraignment your lawyer will already know what you are being charged with, therefore having the judge repeat them is a waste of court’s time..
Discovery is a reciprocal process during which both sides share all of the information they have in their possession. If the State Attorney has evidence of exculpatory nature, (exonerating the guilt of the defendant) the evidence must be furnished to the defense attorney. Both sides are further obligated to furnish the names of all the potential witnesses and their expected testimony.
In order to invoke the Constitutional safeguards a defense attorney will bring various motions prior to the case proceeding to trial. In many cases, the substance of the Motion is dispositive in nature and can end the case forever. For example, if a constitutional violation occurred during the arrest, a defense attorney can bring a Motion To Suppress Evidence and Quash Arrest. This is usually done in drug cases when an individual is arrested because of his race and not because the police officer observed him commit a crime.
Constitutional safeguards guarantee the defendant a trial by 12 jurors. The jury is a fact-finding body, which must unanimously find guilt beyond a reasonable doubt in order for the defendant to be convicted of the charged crime. In the event the defendant opts out from having a jury trial, the judge can be elected as a fact finder and the case will be tried without a jury. This is known as a bench trial. In certain cases an attorney with the consent of his client, may elect to have a bench trial, rather than a jury trial. This is usually done when the facts are more favorable for the defendant.