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The Process of a Criminal Case

 
 

Every criminal case, whether it is in municipal court, county court or state court, follows a process. While there may be slight variations, the process is basically the same. Click on any of the topics below for information.

Right to an Attorney

A person who is being accused of a crime has a right to an attorney. An attorney may be employed to assist the accused during the initial police investigation. Once the case is filed, there is a right to an attorney at every critical stage of the proceeding. If the defendant cannot afford to hire an attorney, and the defendant's income meets certain state guidelines, the court may appoint an attorney without cost to the defendant.

Police Investigation

Prior to a case being filed, the police must do an investigation to ensure that there are sufficient facts to support the filing of a criminal case. During the investigation process, the investigating officer may want to interview the person they suspect of committing the crime. The suspect may choose to talk to the police or may choose not to talk to the police. If the suspect chooses not to talk to the police, his or her silence may never be used in a trial. If the suspect chooses to talk to the police, he or she may stop the interview at any time for any reason. If the police officer wishes to interview the suspect in a place where he or she is not free to leave, then the officer must review certain rights with the suspect prior to the interview. This is commonly known as a Miranda advisement.

In making a decision about whether to talk to a police officer, it is important to remember that you may not know enough about the law or the officer's investigation to recognize when you might actually be incriminating yourself. It is also important to understand that a police officer's job is to investigate a crime. Consequently, the officer's interests may be different, if not adverse, to the interests of the suspect.

The Filing of Criminal Charges

In municipal and county court cases, the police officer files the case. This is often accomplished by writing a ticket for the offense, giving a copy to the person being charged with a crime and filing a copy with the court. The ticket will include the name and statute number of the offense or offenses being charged, and the date and time of the first court appearance.

In a felony case, the District Attorney's Office reviews the police investigation and decides what charges should be filed. The District Attorney's Office prepares a "complaint and information" that includes the legal definition of the offense being charged and the statute number of the offense. If the District Attorney's Office chooses to proceed by giving the complaint and information to the person being charged, and not by making an arrest, the complaint and information will also include the date and time of the first court appearance. The District Attorney will then file the complaint and information with the District Court.

The charging document only has to include enough information to give a person notice of what he or she is being charged. Minor mistakes in the charging documents will usually not result in a dismissal of the criminal case.

Arrest

If a law enforcement officer or the District Attorney's Office feel that either the crime or certain circumstances require additional assurances that the person being charged will appear in Court, they may decide to proceed by arrest. To proceed by arrest; the charging agency must apply to the court for an arrest warrant. The court will review the information obtained by the investigating agency, and determine whether there is enough evidence to issue the warrant. If an agency proceeds by arrest, a copy of the charging document will be provided to the defendant at the first court appearance. If a defendant is arrested, they will be held in a county jail.

Bond

If the charging agency decides to proceed by arrest, the defendant is entitled to bond, unless the crime being charged is a class one felony. The posting of a bond allows the defendant to go through the court process without having to stay in a county jail. If the bond cannot be posted, the defendant will remain in a county jail until his or her case has reached its conclusion.

In setting the type and amount of bond, the court will review the crimes being charged, any prior criminal record and the defendant's ties to the community. The court may require some type of financial commitment be made, and set a cash, property or surety bond. This means that the amount of the bond may be posted by paying the bond amount in cash, by offering to secure the amount of the bond with a piece of property or by hiring a bail bondsman to post the bond. The court may decide that there is no need for an immediate financial commitment, and allow a defendant or another responsible adult to sign the bond with the promise that the bond amount will be paid if the defendant fails to appear for a scheduled court date.

Initial Hearings

In all criminal cases, the first hearing before the court is an advisement hearing. At this hearing, the Court will advise the defendant of his or her rights. In a municipal case, a county court case or a felony case where the defendant has not been arrested, the advisement will usually also include a discussion of the crimes that have been charged. If a defendant in a felony case has been arrested, the charging document may not have been prepared. In that case, the District Attorney's Office will have an additional period of time in which to file the complaint and information, and another hearing will be set for advisement on the crimes charged.

Preliminary Hearing or Dispositional Conference

After the initial hearings, a felony case will be set for a preliminary hearing or a dispositional conference. What the felony case is set for will depend on what has been charged or whether the defendant cannot make bond and will remain in the county jail. A preliminary hearing is held to determine whether there is enough evidence to proceed to trial. The preliminary hearing must be held within 30 days of the date it is requested. A dispositional conference is a set time where the parties can talk about the case and try to reach a resolution.

Arraignment

An arraignment is held in every criminal case. This is the time where a defendant enters a plea. If the defendant pleads "not guilty", the time limit for a speedy trial will began to run. Speedy trial does not start to run until a "not guilty" plea is entered. A felony or a misdemeanor case must be tried within six (6) months of the day the not guilty plea was entered. A municipal ordinance must be tried within ninety (90) days of the day the not guilty plea was entered.

Motions Hearing

The motions hearing is set prior to the trial date. At the motions hearing, evidence is presented and the court is asked to rule on whether certain pieces of evidence can be used in the trial.

Trial

A trial is a hearing used to determine whether the crime did or did not occur. A defendant is allowed to have either a trial to the court or a trial to a jury on most criminal allegations in Colorado. A trial to the court allows the judge to decide if a criminal act was committed and whether the defendant was the person who committed the crime. In a jury trial, citizens from the community make those determinations. If a jury is used, all members of the jury panel must agree that the defendant committed the crime to be able to say that he is "guilty".

At a trial, the defense is allowed to ask questions of the prosecutions witnesses, and to call witnesses in their own defense. Sometimes witnesses have helpful information but do not want to come to court. In that case, the witness can be given a "subpoena", which is a court order to appear in court to testify.

A defendant in a criminal case always has the right to remain silent. If a defendant chooses not to testify at the trial, the finder of fact cannot use the defendant's silence while reviewing the evidence and making a decision about the case. By the same token, the defendant has a right to testify in his or her own defense. If the defendant testifies, the finder of fact may use the defendant's own statements against him or her if that is how the information fits into the facts presented.

Bond and a Plea or Finding of Guilt

If a cash, property or surety bond has been posted, and if someone other than the defendant has posted the bond, the court will require a written consent from the person who posted the bond if the defendant pleads or is found guilty. If the written consent is not provided, the court must revoke the bond and put the defendant back in the county jail.

Pre-sentence Investigation

After a plea or finding of guilt, most courts will order the appropriate agency to do a pre-sentence investigation. This investigation is designed to give the court relevant and verified information concerning the defendant which will assist the court at sentencing. The investigating agency will usually start its investigation by interviewing the defendant. A written report will be produced in advance of the sentencing hearing to allow both sides time to review the report and to identify errors in the report that need to be corrected.

Sentencing Hearing

Prior to the sentencing hearing, the court will review the pre-sentence report. If there is additional information that the defense would like the court to consider, the information may be submitted to the court, in advance of the hearing date. At the sentencing hearing, both sides will have the opportunity to present witnesses, and to make a statement. The defendant will specifically be given an opportunity to address the court, and has the right to either accept or decline.

Sentencing Alternatives

In all criminal cases, the court has sentencing options other than incarceration. In all cases, the court may impose a sentence of probation. However, in county and district court cases, the court must have the permission of the prosecution to impose a probationary sentence if the defendant has two prior felony convictions. The court, as a condition of probation, can require hours of community service or a short jail sentence. If the court decides to impose a sentence, the court may authorize work or education release if the jail sentence is going to be at least thirty (30) days in length. This means that the defendant would go to work or to school, and spend his or her free time at the jail.

In felony cases, the court may have the option of imposing a sentence to community corrections. If the court sentences a defendant to community corrections, the sentence will be for a period of years. If a defendant violates the terms of his or her community corrections sentence, the sentence will convert to a prison sentence and the defendant will complete the remainder of his or her sentence in prison. The community corrections program is essentially a "half way house". People serving a community corrections sentence live at the community corrections center until it is determined that they have met the criteria to be on non-residential status. When a defendant is put on non-residential status, they are able to live at their own residence but must check in regularly much like defendants who are on probation. A sentence to community corrections can never be transferred to another state.

Probation v. Parole

Probation is a sentencing alternative that the court has available when initially imposing a sentence. Parole is the mandatory supervision that is required at the end of every felony prison sentence. The period of mandatory parole is in addition to the prison sentence imposed. The period of parole imposed depends on the class of felony for which a sentence was imposed. The periods of parole are as follows:

Class 1 felony: no parole.

Class 2 felony: 5 years parole.

Class 3 felony: 5 years parole

Class 4 felony: 3 years parole.

Class 5 felony: 2 years parole.

Class 6 felony: 1 year parole.

Plea Bargaining

Plea bargaining is the mechanism that allows the prosecution and the defense to try to reach a fair disposition of a criminal case without going to trial. What is said during the course of plea negotiations is not admissible in Court, and cannot be used against a criminal defendant. Plea bargaining can be done at any time throughout the course of the criminal proceeding unless there are time restrictions that have been imposed by the court. The court cannot be involved in the plea bargaining process.

There are certain sentencing alternatives that can only be offered by the prosecution as a plea bargain. A deferred prosecution and a deferred judgment are two sentencing alternatives that give a defendant the opportunity not to have a criminal record.

With a deferred prosecution, a plea is not entered. Speedy trial is waived, and the case is set over for a period of time. Conditions are placed on the deferred prosecution. If the defendant successfully completes those conditions during the specified period of time, the case is dismissed. If the conditions are not completed, the case is reset for trial, and proceeds through the normal process.

A deferred judgment requires a guilty plea. The judgment is then deferred for a period of time. Since a conviction on a criminal case does not enter until a sentence has been imposed, the defendant does not stand convicted of a crime at this stage. Conditions are placed on the deferred judgment. If the defendant successfully completes those conditions during the specified period of time, the guilty plea is withdrawn and the case is dismissed. If the conditions are not completed, the conviction enters and the defendant is sentenced on the criminal conviction.

If a plea agreement is reached between the parties, the court still maintains the authority to accept or reject the agreement. If the court rejects the plea agreement, the parties may either try to reach another agreement or set the case for trial.

For more information on the criminal defense process, please select a topic from the following menu:

Please contact our firm to discuss your legal issue.

 

 
 
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Harrington Brewster & Clein P.C.  and The Denver Center for Mediation & Collaborative Law
1623 Washington Street, Denver, CO 80203     phone 303-831-0808    fax 303-831-0143  hbc@hbc-law.net

At Harrington Brewster & Clein, P.C., we represent clients throughout the Denver metro area, including those in Denver, Aurora, Boulder, Brighton, Broomfield, Centennial, Elizabeth, Englewood, Glendale, Golden, Highlands Ranch, Lakewood, Littleton, Lone Tree, Parker, Thornton, Westminster, Denver County, Adams County, Arapahoe County, Boulder County, Broomfield County, Castle Rock, Douglas County, Elbert County and Jefferson County.