Process

What are the Steps in a Criminal Case?

1. Investigation

In the investigation stage, the police are gathering evidence. The police must gather enough evidence a) a crime has been committed, and b) that you are the person who committed it, so that the police can establish “probable cause”. The word probable in the law means “more likely than not”. Essentially, the police must gather enough evidence against you to establish that it is more likely than not that you committed a crime. Once probable cause has been established, you may be arrested by the police. Generally, the police must present their evidence of probable cause to a judge who will then sign a warrant before the police may arrest a suspect. However, in certain circumstances, if a police officer has a good faith belief that probable cause exists, the suspect may be arrested on the spot.

2. Arrest

  1. Not to over simplify things, but this is the stage where the police put you in their car and take you in to the police station. Most people have a pretty good grasp of how this part of the process works. But what about all that “You have the right to remain silent,” stuff? Where does that come into play?


    Brief history lesson: miranda v. Arizona

    At one time, it was common practice for police to haul a suspect in, shut him in a room cut off from the rest of the world and question him for hours on end, not letting him speak to an attorney, until the suspect broke down and confessed. This interrogation strategy was the subject of the Miranda case. The U.S. Supreme Court decided that a confession taken this way could not possibly be the product of the suspect’s free will, and was a violation of a person’s right to refuse to incriminate himself. The Court also held that such a confession could not be used in court against a defendant. Any person taken into police custody must be informed of:

    • The right to remain silent, but what you DO say can be used against you
    • The right to have an attorney
    • The right to have an attorney appointed if you cannot afford one
    • The right to have that attorney present when you are questioned by the police
  2. This is why before the police ask you any questions, they will read you your rights or “Mirandize” you. But keep in mind – Miranda only applies when the police ask you questions while you are in their custody. If you are not responding to a question, you are “volunteering information” and this can be used against you in court, whether you were read your rights first or not.
  3. So remember:
    • Ask for a lawyer
    • Don’t talk to anyone until you’ve had a chance to speak to your lawyer
    • If you DO start talking during questioning – YOU CAN STOP AT ANY TIME

3. Bail

So you’ve been arrested. Now you will be brought before a judge who will set your bail. The amount bail will be based on several things; for example, what charge you are facing, whether you have any previous offenses on your record and whether or not the judge thinks you will try to run away. Bail is sort of like a bet. You are betting the court the amount of your bail that you will show up for your court date. If you do show, you get your money back. If you don’t show, the court keeps your money – and issues a warrant for your arrest. This is a bet you definitely want to win.

4. Arraignment

This is the next time you are brought before a judge. You will have the charges against you read to you. The judge will ask you whether you have an attorney, and if not, if you want the court to appoint one. The judge will also ask you how you plead to the charges: “guilty,” “not guilty,” or “no contest.” At this hearing the judge may also re-adjust your bail and set a schedule for any other hearings in your case, and set a date for your trial.

5. Preliminary hearing (for felony cases)

This is also called a “probable cause” hearing. This hearing will have more the feel of a trial because both attorneys (the prosecutor and your defense attorney) will call witnesses and have the chance to cross examine the other side’s witnesses. The purpose of the hearing is to determine if the prosecution has enough evidence supporting the charges against you to proceed to a full trial. The burden of proof on the prosecution is lower in this hearing than at a final trial. Just because the prosecution shows it has enough evidence to go to trial does not mean that you have been convicted of anything.

6. Plea bargaining

This is where an experienced defense attorney can really come in handy. Plea bargaining is a negotiation process between the defense and the prosecution. The prosecutor will make various offers from reducing the charge against you, dropping some of the charges, or recommending a lighter sentence. The primary thing that the prosecution wants in exchange for their offers is a guilty plea from the defendant. Beware of an offer to recommend a lighter sentence. Yes, the prosecutor CAN make this recommendation, but there is NO obligation that the judge goes along with it. It is the Court (or jury) that sentences you, not the prosecutor. Your defense attorney can advise you as to whether or not the “deal” being offered by the prosecution is a good one for your particular circumstances.

7. Trial

  1. If no plea bargain is reached, the case will proceed to trial. While there is some variation on this, generally a trial runs in the following order:
  2. The charges (indictment or information) are read to the jury by the prosecutor.
  3. The special pleas, if any, are read by the defendant’s counsel, including the plea of not guilty.
  4. The prosecutor describes to the jury the nature of the accusation and the facts which the prosecution intends to prove.
  5. The prosecution will introduce its evidence and question its witnesses.
  6. The defendant’s attorney will describe to the jury any defenses he is relying on and the facts the defendant’s attorney intends to prove.
  7. The defense will introduce its evidence and question its witnesses. The defendant MAY testify, but does not have to. No negative conclusion may be drawn by the judge or jury because the defendant does not testify.
  8. Each side may introduce “rebuttal” evidence. This is evidence that is presented in direct response to evidence presented by the opposing side.
  9. Both sides will get to make closing arguments to the jury. No matter how many “final” arguments are made, the prosecutor will always get to go last. This means the prosecutor gets to “have the last word” to the jury before the jury decides a verdict.

8. Sentencing

  1. You just heard the words you were really hoping never to hear, “We the jury find the defendant guilty.” If you haven’t already done so, at this point you and your attorney may decide that you want the jury to sentence you instead of the judge. You attorney can help you weigh the pros and cons of that decision. Whoever is doing the actual sentencing; both the prosecution and the defense may offer evidence at the sentencing phase of trial on ANY matter that the court (judge) thinks is relevant. This may include:
    • The prior criminal record of the defendant,
    • The defendant’s general reputation and character,
    • The circumstances of the offense for which he is being tried,
    • Evidence of an additional crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant – even if he has not been convicted of this additional crime, and
    • Any other mitigating (making it better) or aggravating (making it worse) evidence.
  2. Once all this evidence has been put on by both sides, if the jury has the responsibility of sentencing, the judge will give the jury any additional written instructions that may be necessary. Then the jury will deliberate on the sentence just as they did when they decided guilt versus innocence. When the judge does the sentencing, after hearing the evidence mentioned above, he will announce his decision in open court.

9. Crime and Punishment

From not coming to a complete stop at a stop sign all the way up to premeditated murder, there is a wide range of acts classified as “crimes” in Texas. It is important to know how the crime you are charged with (or being investigated for) is classified to help you understand the seriousness of the situation, and the potential punishments involved. Texas Criminal Law – Texas has two main categories for crimes: Felonies and Misdemeanors. Each of these categories has several sub-categories.

  • MISDEMEANORS
    • Misdemeanors are classified according to the relative seriousness of the offense into three categories:
      1. Class A misdemeanors;
      2. Class B misdemeanors;
      3. Class C misdemeanors.
    • Class A misdemeanors are punishable by a fine not to exceed $4,000; confinement in jail for a term not to exceed one year; OR both a fine and jail time.
    • Class B misdemeanors are punishable by a fine not to exceed $2,000; confinement in jail for a term not to exceed 180 days; OR both a fine and jail time.
    • Class C misdemeanors are the lowest level of crime. This is the category traffic tickets fall under. These are punishable by a fine not to exceed $500.
  • FELONIES
  • Felonies are classified according to the relative seriousness of the offense into five categories:
    1. capital felonies;
    2. felonies of the first degree;
    3. felonies of the second degree;
    4. felonies of the third degree; and
    5. state jail felonies.
  • Capital felonies are the highest level of crime. These crimes are punishable by imprisonment for life without parole or by death. This is reserved only for certain types of murder.
  • A first degree felony is punishable by imprisonment for life or for any term of not more than 99 years or less than 5 years. In addition to imprisonment, a felony of the first degree may be punished by a fine not to exceed $10,000.
  • A second degree felony is punishable by imprisonment for not more than 20 years or less than 2 years. In addition to imprisonment, a felony of the second degree may be punished by a fine not to exceed $10,000.
  • A third degree felony is punishable by imprisonment for not more than 10 years or less than 2 years. In addition to imprisonment, a felony of the third degree may be punished by a fine not to exceed $10,000.
  • A state jail felony is punishable by confinement in a state jail for not more than two years or less than 180 days. In addition to confinement, a state jail felony may be punished by a fine not to exceed $10,000.