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The Criminal Case

Posted by attorney Elmer Sanchez

In the criminal process, either the state or federal government is seeking to detain and punish a person whom the government believes is guilty of committing a crime. The U.S. Constitution guarantees certain rights and protections to persons being prosecuted by the government. There is, for example, protection from unreasonable search and seizure; a right to counsel; a right to a jury trial; a right to a speedy trial; and a right to confront witnesses. How people are treated in the criminal process is largely a matter of constitutional law. What kinds of acts or omissions are considered crimes and how they are punished is largely governed by the state. (For a discussion of Florida criminal law see the Criminal Law: Felonies & Misdemeanors and Criminal Law: DUI chapters.)

The criminal process begins when a person is arrested. The police can arrest someone if they have probable cause to believe that the person has or is in the process of committing a felony, or if a misdemeanor was committed in the presence of an officer. An example of a felony is burglary, rape, or murder. An example of a misdemeanor is shoplifting, willfully telling the police false information about a crime, or knowingly transmitting sexually dangerous diseases. The police can also arrest someone if they have a warrant. A warrant is a court order charging that there is probable cause to believe a person has committed a crime and should be brought into court.

When making an arrest, the police are entitled to use all reasonable and necessary force to overcome any resistance. Regardless of your feelings about being arrested, it is best not to resist. Violently resisting arrest is a felony in Florida; resisting arrest without violence is a misdemeanor. Even if you are found not guilty of the crime for which you were arrested, you still can be charged with resisting arrest.

As most people know from television, after someone has been arrested, he or she must be informed of his or her constitutional rights before being questioned by the police. The 1966 U.S. Supreme Court case, Miranda v. Arizona, requires that any arrested person be told (1) they have the right to remain silent; (2) anything they say can be used against them in court; (3) they have a right to an attorney; and (4) if they cannot afford an attorney, one will be provided without charge. If these Miranda warnings are not given, evidence of admissions or confessions made by the arrested person during police questioning cannot be used in court.

A person has the right to an appearance before a judge within 24 hours of his or her arrest. At this initial appearance, the judge will inform the person of the charges against him or her and will determine whether pretrial release is permissible. Persons in custody for the alleged commission of a crime are usually entitled to pretrial release, unless they are accused with a capital offense (a crime punishable by death) or an offense punishable by life imprisonment and the proof of guilt is "evident or the presumption great." Depending upon the situation, the accused may be released on his or her own recognizance, may be placed in the custody of a designated person or organization agreeing to supervise the accused, or may have to execute a bail bond. In any case, the accused must agree to return to court for further proceedings. If the government believes the accused may flee or will place the community at risk, it can file a motion for pretrial detention.

If the attorneys for the government believe that the arrest was justified and the available evidence supports the arrest, the government will charge the accused person with a crime. Charging can be done directly with a document known as an information or a grand jury can issue an indictment. A grand jury is a panel of citizens that determines whether there is sufficient evidence to charge a person with a crime. A grand jury does not determine guilt or innocence of a defendant; that task is given to a petit jury during the trial portion of the criminal process. Both an information and an indictment are formal charging instruments that specify the crime, the accused, and give a court jurisdiction to try the case. Capital felonies can only be charged by an indictment.

The arraignment is the accused's formal response to the charges filed by the government. The accused may plead guilty, not guilty, or nolo contendere. A plea of nolo contendere means that, without admitting guilt, the accused will not contend the charges made by the government. Judges will not always permit a nolo contendere plea.

If the accused enters a plea of guilty or nolo contendere, there is no need for a trial and the next step is sentencing. If the accused enters a plea of not guilty, the parties will proceed to trial. Along the way, the accused might file motions attempting to suppress the evidence against him or her on constitutional grounds. Evidence might have been seized without a proper warrant or a confession might have been obtained improperly. Also along the way to trial, and sometimes during trial, plea bargaining may occur. That is, the accused might agree to plead guilty to a lesser charge if the prosecution agrees to drop the more serious charge. In the interest of expediency and moving cases through the courts, plea bargaining is typically encouraged.

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