David Bernthal/Off the Bench: Guiding you through felony case progression

David Bernthal/Off the Bench: Guiding you through felony case progression

We read and hear about criminal cases on a regular basis. This column attempts to provide some insight regarding the progress of a felony case in federal court. Key terms will be printed with all capital letters for emphasis.

Cases can arise in various ways. Some are the product of long periods of investigation and surveillance. Drug distribution and child pornography are examples. Other cases arise when a person is arrested during, or shortly after, the commission of an offense. A bank robbery followed by a chase and capture serves as an example.

The prosecutions usually begin with the filing of a document known as a CRIMINAL COMPLAINT. That document is supported by a sworn affidavit setting forth key facts regarding the offense. Those documents are presented to a judge for review. If the judge finds sufficient evidence, an ARREST WARRANT is issued. The accused may already be in custody since warrantless arrests are permissible under certain circumstances. If the person is still at large, the arrest will take place pursuant to the warrant.

Once the defendant (person charged) is in custody, an INITIAL APPEARANCE is held. The judge informs the defendant that charges have been filed and ensures he has a copy of the documents mentioned above. The court determines if the person plans to retain an attorney. If not, and the person is determined to be indigent, the judge will appoint an attorney to represent the defendant. Unless waived (knowingly and voluntarily given up), a PRELIMINARY HEARING will take place. The judge must determine if there is PROBABLE CAUSE to believe a crime was committed and the accused committed it. If so, or the preliminary hearing is waived, the matter is bound over to the GRAND JURY.

Furthermore, the judge must determine whether the accused is to be released on bond or held in custody pursuant to an ORDER OF DETENTION. If the defendant is released, she is subject to special conditions that are monitored by the United States Probation Office.

The next step of the process requires the prosecutor to present facts to the GRAND JURY. The proceedings are not open to the public. Neither the accused nor the defense attorney is entitled to be present. No judge presides. The prosecutor is responsible for the proceedings. If the GRAND JURY finds probable cause, an INDICTMENT is returned. That document becomes the charging instrument.

An accused has a right to be charged by INDICTMENT. Stated another way, a person does not have to face charges unless a group of citizens who make up the GRAND JURY determine that there is probable cause to believe she committed the offense. In some situations, the prosecutor initiates the case by taking the evidence directly to the GRAND JURY instead of filing the CRIMINAL COMPLAINT. This is permissible while the converse is not. The grand jury cannot be skipped. The only exception occurs when the defendant waives indictment. This can happen when a plea agreement is worked out in advance and the person pleads guilty to charges brought by a different document known as an INFORMATION.

When the INDICTMENT has been filed, an ARRAIGNMENT is held. The judge informs the accused what charge or charges have been brought. In addition, the maximum penalty must be explained. Typically, the accused enters a plea of not guilty. This is so even when the evidence seems overwhelming. The plea keeps the case moving and gives the defense attorney time to fully evaluate the evidence and conduct negotiations with the prosecutor. The judge enters a scheduling order setting the case for trial. The trial date must be in conformity with the requirements of the Speedy Trial Act. Cases do not necessarily go to trial on the first scheduled date. Either side may ask the court for a continuance. The most common ground for such a request is a need for more time to examine evidence including records or transcripts of recorded conversations. Requests for continuance are ruled on by the judge.

In many cases, prior to trial, a defendant chooses to plead guilty. The plea may or may not be pursuant to a written plea agreement negotiated with the prosecutor.

In the remaining cases, a trial is conducted. Unless a jury is waived, the court will select a jury that will hear the evidence and determine if the prosecution has met its burden of proof beyond a reasonable doubt. If not, the verdict is not guilty and the case is concluded. If a guilty verdict is returned the case proceeds to sentencing.

Next time you hear or read about a case, I hope this explanation makes the process clearer.

David Bernthal, who lives in Mahomet, is a retired 21-year federal magistrate. He is of counsel with the Webber & Thies PC law firm and serves as senior mediator and arbitrator with ADR Systems. His email is askthejudge1@gmail.com.

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