WHAT TAKES SO LONG:
Criminal cases can take a long time to finish. This depends on the seriousness of the charges and whether you're going to take a plea or go to trial.
There are "speedy trial rules" governing the amount of time the D.A. has, to be ready for trial, but more serious cases can take six to 12 months, or longer, to go to trial. Trial preference is usually given to defendants who are in jail.
Technically the D.A. has to be ready for trial within six months of your arrest, (90 days for misdemeanors), but there are certain time periods that are excluded from the six months (or 90 days), and these rules do not apply to homicide cases.
Some of the reasons for the delay include: Crowded court calendars; busy D.A.s and defense lawyers; and delays in getting documents from the D.A. or police, that your lawyer needs to prepare for trial.
Each case is different and requires different preparation. There are certain procedures that have to be followed. Your lawyer can explain this more fully as it relates to your case.
The wait is frustrating, but there's little that can be done to speed things up. In certain cases, delay is helpful to the defendant.
It's upsetting having criminal charges hanging over your head. Lawyers sensitive to their clients' feelings, often act as psychologists and social workers as well as lawyers. Maybe that's why we're also called counselors.
TRIAL PREPARATION:
After arraignment, your case will be adjourned. If it's a felony, trial preparation usually begins after you've been arraigned on the indictment. If it's a misdemeanor, trial preparation begins after the Criminal Court arraignment.
The next time the case is on, there will be a conference, where the D.A., the judge and your lawyer will discuss your case to see if it can be disposed of without a trial. There will probably be a plea offer. If the plea is refused, the case is adjourned for your lawyer to make "motions".
Plea-bargaining will be discussed later in this guide.
One of the biggest delays in the system is due to trial preparation. It's better to have the delay than go to trial without adequate preparation, even if you're in jail.
One of the things your lawyer has to do is make certain "motions". S/he will prepare an Omnibus motion which is a formal written request for certain information the D.A. has about your case (discovery), and requests that certain evidence be suppressed, on the grounds it was obtained in violation of your rights.
There are also certain dismissal" motions that are included, where appropriate.
There will usually be hearings on the suppression motions, if the judge thinks you're entitled to them.
These pre-trial hearings will be discussed later.
Another thing your lawyer has to do to prepare your case for trial is to investigate.
Sometimes an investigation can't be done until the D.A. responds to your lawyer's "discovery" motions and turns over police reports to him/her.
The D.A. often keeps information from the defense until the eve of trial.
Police reports are often turned over with the names and addresses of witnesses deleted, to protect them.
Judges usually don't make the D.A. disclose that information until trial. We sometimes call this "trial by ambush".
Your case will be adjourned, usually about three weeks at a time, until it's ready for trial or you take a plea.
Because of all the delays, some defendants take pleas just to avoid having to come back to court so many times. This is more likely to happen in Criminal Court in misdemeanors cases.
TO PLEAD OR NOT TO PLEAD:
Many people think plea-bargaining is a dirty word. Plea bargaining is actually like negotiating a disposition of a case. Sometimes a plea-bargain is appropriate.
Whether you take a plea or go to trial is an important decision you have to make. It's not the kind of decision your lawyer should make for you, but his/her opinion should be very important to you when you decide to take a plea or go to trial.
Once your lawyer has a clear enough picture of the evidence against you, s/he can evaluate the chances of winning your trial.
S/he will usually balance your odds of winning, against the amount of time you could be sentenced to if you lose trial, and the sentence being offered in the plea-bargain.
Defendants who are in jail awaiting trial are more likely to take pleas than defendants who are out of jail.
The decision is a very difficult one, especially if you're innocent and the evidence against you looks strong.
There are provisions in the law for a person to plead guilty without admitting guilt.
This is called a SERRANO plea or an ALFORD plea (named after the cases that allow this kind of plea). Some judges don't like to take SERRANO/ALFORD pleas.
It's very hard to admit guilt if you're innocent, but there are defendants who do it because their chances of winning are so slim, they'd rather take the sure thing (usually probation or low jail time) than risk a severe jail sentence after losing trial.
If you go to trial and lose, you usually get more time than that offered in the plea-bargain. It's like getting extra punishment for putting the state through the trouble and expense of the trial.
No matter how experienced or skillful your lawyer is, there's no guarantee of winning a trial. One reason people take pleas is to avoid the uncertainty of trial.
Trial is an uphill battle for the defense. The D.A. has most of the tools. S/he has police and detective investigators (D.I.s) to help investigate and get witnesses to cooperate.
Even if the defense has been able to get the names and locations of witnesses, there's no real way to get them to cooperate if they don't want to, and most people don't want to get involved.
The D.A. also has public opinion on his/her side. Even though the law says that you're presumed to be innocent, and that the burden of proving your guilt is on the D.A., jurors do not always understand or follow the law.
Unfortunately, nowadays, especially is New York City, jurors are exposed to crime on the streets, either personally or through the media, and tend to presume you're guilty and expect the defense to prove your innocence. This is especially true if you're minority or poor.
Sorry to paint such a grim picture, but that's where things are at, and this guide discusses realities, not ideals.
PRE-TRIAL HEARINGS:
There are several types of hearings, called pre-trial hearings, or suppression hearings, that may occur before a trial jury is selected.
Not every case has pre-trial hearings.
It depends on the evidence against you.
These hearings are usually named after certain landmark cases.
After the hearings, the judge decides whether or not to let the D.A. use certain evidence against you at trial.
If the evidence in question at the hearing is the only evidence against you, and you win the hearing, that might be the end of your case.
A HUNTLEY hearing is to suppress statements allegedly made by you to a law enforcement officer (including police, D.A., or their agent), on the grounds that you weren't advised of your constitutional right to remain silent or were forced to make the statement, either by threats or brutality.
I often have clients tell me, when I interview them for the first time, that the police did not "read them their rights".
They seem to think that's a way to get a case dismissed. Unfortunately, that's rarely the result.
The only consequence of not reading you your rights is that if you made a confession, there are grounds to get it suppressed.
It's unlikely that the police will admit they failed to read you your rights, or that they threatened or beat you.
At the HUNTLEY hearing they'll probably testify that they read you your (MIRANDA) rights, and deny that they used any force.
The judge usually believes the police. This happens in most instances where the police version differs from the defendants'.
A DUNAWAY hearing is also a hearing to suppress statements, on the grounds that the police didn't have probable cause (any legal reason) to arrest you in the first place.
A WADE hearing is a hearing to suppress the identification on the grounds that the pre-trial identification procedure was suggestive, and that the witness would not have otherwise been able to identify you.
A MAPP hearing is a hearing to suppress physical evidence seized from you (usually a weapon, drugs, or the proceeds of a crime), on the grounds that the police had no legal right to stop you or search you in the first place.
A SANDOVAL hearing is a hearing to prohibit the D.A. from using your criminal record to impeach you during crossexamination, if you testify at trial.
Ordinarily, when a witness testifies at trial, the opposing counsel can use the witness' criminal record on cross-examination to show that the witness isn't worthy of belief.
When the witness is the defendant, the court has to balance your constitutional right to testify on your own behalf against the D.A.'s right to this cross-examination technique.
The problem is that juries tend to believe that if you've committed crimes in the past, you probably committed this one too, and that's not one of the factors a jury is supposed to consider as evidence. The defense attorney tries to limit this through the SANDOVAL hearing.
If you don't testify at trial, the D.A. can't introduce your criminal record, except under specific conditions that are too technical to discuss here.
TRIAL:
After the pretrial hearings are finished, the trial begins. The trial is the part of the case where a decision is made by a judge or a jury, after listening to the evidence, as to your guilt or innocence.
You're entitled to a jury trial in all felony cases, and misdemeanor cases that carry penalties over six months in jail.
Even if you're entitled to a jury trial, there are certain cases that are better tried without a jury. This kind of decision is between you and your lawyer and usually depends on the specifics of your case and which judge is in the trial part.
It's important to dress appropriately when you're on trial. Dress like you would for a church function, not like you would on a date. You want to look neat but not flashy.
If you're out of jail and don't appear for trial, in addition to getting a bench warrant and forfeiting your bail, your case may be tried without you.
Most judges warn defendants of that possibility. If you've been warned, and don't appear, you can be tried, convicted and sentenced in your absence.
The likelihood of conviction increases, if you're not present at your trial.
When the police pick you up on the bench warrant, you'll be sent to jail to serve your sentence.
You may also, practically speaking, waive your right to appeal.
Assuming you're having a jury trial, the first part is to select the jury. This is called voir dire.
A panel of prospective jurors is brought to the courtroom from the Central Jury Panel. The judge explains some general principles of law to them.
From that panel, 12 or more at a time, (six if it's a misdemeanor trial), are called into the jury box to be questioned by the judge, the D.A., and the defense attorney.
The purpose of the voir dire is to give the D.A. and the defense attorney a chance to find out whether the prospective juror can be fair.
After each round, the attorneys usually leave the courtroom with the judge and court reporter (who records the proceedings), and challenge the jurors they don't want.
It's more a process of elimination than one of selection. There are a specific number of peremptory challenges for each side, depending on the nature of the charges.
Peremptory challenges are those that do not require the attorney to give a reason for the challenge.
If either side can show the judge that a potential juror can't be fair, then that juror can be challenged for cause. Challenges for cause are unlimited.
A felony trial jury consists of 12 jurors and usually two alternates. If one of the jurors can't continue to serve (because of illness or the like), an alternate is substituted.
After the jury is selected, the judge usually tells them more of the general principles of law. S/he explains their duties and explains the order of the trial. S/he also warns them not to discuss the case with anyone until it's over.
The D.A. then makes an opening statement. This tells the jury what s/he intends to prove to them during the trial. S/he usually describes this as a table of contents.
The defense attorney may also make an opening statement. This will be a matter of trial strategy that your lawyer will decide, depending on the nature of your defense.
The defense attorney is not required to make an opening statement, because the defense is not obligated to prove anything during the trial.
After opening statements, the D.A. presents evidence. Evidence is testimony from witnesses, and exhibits (weapons, contraband, documents, etc.).
When a witness testifies for the D.A., s/he questions him/her first. This is direct examination.
When the defense attorney questions that witness, it's cross-examination.
When the D.A. has finished putting on his/her case, your lawyer has the right to present a defense case.
However, the defense doesn't have to present a case because the defense doesn't have to prove anything.
The jury is supposed to decide, based on what the D.A. presents, if they're convinced of your guilt "beyond a reasonable doubt".
A major trial decision is whether or not you'll testify in your own behalf at trial. Even though the jury is told not to hold it against you if you don't testify, they often do hold it against you. The decision is harder if the D.A. has been given permission to cross-examine you about your criminal record.
After the defense rests, the D.A. may present evidence to rebut something the defense has raised in its case. If this happens, the defense may present evidence to rebut that.
When both sides finish presenting their evidence, they rest. Then they do summations. The defense attorney sums up first, and, because s/he has the burden of proof, the D.A. sums up last.
Summations are the lawyers' comments about the evidence to show why they think the jury should reach a certain verdict.
When both sides finish their summations, the judge explains the relevant law to the jury and sends them out to deliberate until they reach a verdict.
They're not allowed to discuss the case with anyone who isn't on the jury.
A verdict must be unanimous. Sometimes the jury can't reach a verdict by the end of the day, and they're sequestered for the night (sent to a hotel together).
If the jury can't reach a unanimous verdict, and it seems they won't be able to no matter how long they deliberate, they may let the judge know they're deadlocked, and the judge may declare a hung jury. If that happens, you may be tried again.
If you're acquitted (found not guilty), you can't be charged or tried again for the same case.
SENTENCING:
If you're convicted after trial, or take a plea, the case will be adjourned for the probation department to prepare a report to aid the judge in sentencing. If you've been in jail awaiting trial you'll get credit for that time toward your sentence.
It's very important to make a good impression on the person interviewing you, because his/her recommendation carries alot of weight.
Even if your sentence was negotiated by plea-bargain, if the probation report is bad, the judge may decide not to keep his/her promise to you and give you the option of taking more jail time or withdrawing your plea.
Also, your probation report is attached to your file and is taken into consideration when you become eligible for parole.
If you're eligible for "youthful offender" treatment, the probation report is sometimes the deciding factor.
If you've taken a plea and are out of jail awaiting sentence, and fail to keep your appointment for your interview with the Department of Probation, or get convicted of another crime, or fail to appear in court on the date of sentence, the judge can give you a harsher sentence, without giving you the option of withdrawing your plea.
When the Department of Probation prepares its report, they usually contact the D.A. for input, but not the defense attorney. If you're convicted after trial, your lawyer may want to prepare his/her own "pre-sentence report" to balance things out.
APPEALS:
If you're convicted after trial, your lawyer must file a "notice of appeal" for you within 30 days of the sentence date to insure your right to appeal.
If you're indigent, a lawyer will be assigned to do your appeal. It will either be a Legal Aid lawyer or an 18-B lawyer.
Appeals take a long time to be heard. Part of the delay, especially if you're indigent, is the length of time it takes the appeals lawyer to get the minutes of the trial.
Assigned lawyers have alot of cases to do, so it usually takes longer for them to get to your case. It sometimes takes years for an appeal to be heard.
If you can afford to pay privately for the appeal, and the minutes of the trial, you can speed up the process quite a bit.
Sometimes you can get bail pending appeal, but the majority of defendants wait in jail until their appeal is heard.
"ASSERT YOUR RIGHTS" CARD:
If you're arrested, you can tell the police your name, address, date of birth, etc. (pedigree information), but don't answer questions about the crime or where you were when it happened.
To protect yourself, cut out the card below and keep it with you, just in case. If you borrowed this book from your library, please just photocopy this card. Hand it to the police if they want to question you; search you or your property; or place you in a line-up. This card could save you years in jail.
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* I do not wish to answer any *
* questions without speaking to *
* an attorney first. I do not *
* consent to a search. I do not *
* consent to being in a line-up. *
* I will not waive any of my *
* constitutional rights. *
* Thank You. *
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