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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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Probation vs. 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.
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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:
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